United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE.
se Petitioner Terry Patterson filed the above-captioned
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241. Patterson was charged in the United States District
Court for the Southern District of Ohio on charges of
engaging in activities with materials constituting of or
containing child pornography. See United States v.
Patterson, No. 2:12-cr-033 (S.D. Ohio June 5,
2012)(Economus, J.). He pled guilty to the charge and was
sentenced on June 5, 2012 to 120 months incarceration. On
January 11, 2013, Petitioner filed a Motion to Vacate under
28 U.S.C. § 2255 in the Southern District of Ohio. The
Court denied the Motion on May 13, 2013, indicating
Petitioner did not show cause why he did not pursue his claim
on direct appeal.
has now filed this Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241. He appears to assert he was denied
equal protection because the government agents that set up
sting operations use child pornography as bait and are not
arrested and charged with trafficking in child pornography.
He acknowledges that claims such as this one which challenge
the fact of a conviction or sentence must be raised in a
§ 2255 Motion to Vacate. He asserts that because he
already filed a § 2255 Motion and he is barred from
filing a successive petition, he should be permitted to seek
relief under § 2241. He asks me to vacate his conviction
and order his release from prison.
of habeas corpus “may be granted by the Supreme Court,
any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). Section 2241 “is an affirmative grant
of power to federal courts to issue writs of habeas corpus to
prisoners being held ‘in violation of the Constitution
or laws or treaties of the United States.'”
Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011)
(quoting §2241(c)). Because Petitioner is appearing
pro se, the allegations in his Petition must be
construed in his favor, and his pleadings are held to a less
stringent standard than those prepared by counsel. Urbina
v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, a
district court may dismiss a Petition at any time, or make
any such disposition as law and justice require, if it
determines the Petition fails to establish adequate grounds
for relief. Hilton v. Braunskill, 481 U.S. 770, 775
(1987); see also Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970) (holding district courts have a duty to
“screen out” Petitions lacking merit on their
face under §2243).
Petitions under 28 U.S.C. § 2241 may only be used by a
federal prisoner seeking to challenge the execution or manner
in which his sentence is served. Capaldi v.
Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998)(citing
United States v. Jalili, 925 F.2d 889, 893 (6th Cir.
1991)); Wright v. United States Bd. of Parole, 557
F.2d 74, 77 (6th Cir. 1977). Federal prisoners seeking to
challenge their convictions or imposition of their sentences
must pursue relief under 28 U.S.C. § 2255. Cohen v.
United States, 593 F.2d 766, 770 (6th Cir. 1979). The
remedy afforded under § 2241 is not an additional,
alternative, or supplemental remedy to that prescribed under
§ 2255. See Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996).
2255 contains a “safety valve” provision which
permits a federal prisoner to challenge his conviction or the
imposition of his sentence under § 2241, if it appears
that the remedy afforded under § 2255 is
“inadequate or ineffective to test the legality of his
detention.” United States v. Hayman, 342 U.S.
205, 223 (1952); In re Hanserd, 123 F.3d 922, 929
(6th Cir. 1997). This is a very difficult standard to meet.
The remedy under § 2255 is not inadequate or ineffective
merely because an individual is unable to obtain relief under
that provision. See e.g., Charles v. Chandler, 180
F.3d 753, 756 (6th Cir. 1999)(per curiam). The § 2255
remedy does not become inadequate or ineffective just because
§ 2255 relief has already been denied, because the
Petitioner is procedurally barred from pursuing relief under
§ 2255, or because the Petitioner has been denied
permission to file a second or successive Motion to Vacate.
fact, to fit within any arguable construction of the savings
clause, a Petitioner must show an intervening change in the
law that establishes his actual innocence. United States
v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001). A valid
assertion of actual innocence is more than a belated
declaration that the Petitioner does not believe his
conviction or sentence is valid. See Martin v.
Perez, 319 F.3d 799, 804 (6th Cir. 2003);
Peterman, 249 F.3d at 462. “[A]ctual innocence
means factual innocence, rather than mere legal
insufficiency.” Martin, 319 F.3d at 804
(quoting Bousley v. United States, 523 U.S. 614, 623
(1998)). In other words, Petitioner must point to a change in
the law that occurred after his conviction became final,
which made the conduct for which he was convicted no longer a
crime. Bousely, 523 U.S. at 620. See, e.g.,
Bailey v. United States, 516 U.S. 137 (prisoners
convicted of “using” a firearm during a drug
crime or violent crime found themselves innocent when Supreme
Court redefined “use” in a restrictive manner).
Petitioner is challenging the validity of his conviction. He
can only raise his claim in a § 2255 Motion to Vacate.
Although he contends he already filed a § 2255 Motion
and now is barred from filing a second or successive
Petition, this does not entitle him to seek relief under
§ 2241. Furthermore, the savings clause does not apply
in this case. Petitioner does not attempt to assert that an
intervening change in the law rendered his conduct no longer
a crime. Instead, he argues that federal agents engaging in
sting operations using child pornography as bait should also
be prosecuted. Petitioner cannot proceed with this claim
under § 2241.
the Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 is denied and this action is dismissed
pursuant to 28 U.S.C. § 2243. Further, I certify,
pursuant to 28 U.S.C. § 1915(a)(3), ...