United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick, United States District Judge
se Petitioner Larry Cochran, an inmate in the Federal
Correctional Institution in Elkton, Ohio, filed the
above-captioned Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241. He was convicted in the United States
District Court for the Northern District of Indiana on
charges of possession with intent to distribute five or more
grams of a mixture and substance containing a detectable
amount of cocaine base, commonly known as “crack”
in violation of 18 U.S.C. § 841(a)(1).
Petition, he contends his indictment is fatally defective. He
asserts that he was charged with possessing with intent to
distribute a “mixture or substance” containing
cocaine base, but the indictment failed to identify the
mixture or substance that contained the cocaine. Petitioner
asserted this argument in his pro se Motion to
Dismiss the Indictment filed prior to his trial and in his
Motion to Vacate his Conviction and Sentence under 28 U.S.C.
§ 2255. Both Motions were denied by the trial court. The
Seventh Circuit Court of Appeals denied his request for a
Certificate of Appealability. Petitioner has now asserted
that same claim in this Court in § 2241 Petition.
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 Section 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,
this Court may dismiss the 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 Section 2243).
is not entitled to relief under 28 U.S.C. §2241. As a
general matter, 28 U.S.C. §§2255 and 2241 provide
the statutory scheme for federal prisoners to obtain habeas
relief. See Terrell v. United States, 564 F.3d 442,
447 (6th Cir. 2009). Section 2255 is the avenue for relief
for federal prisoners to challenge their conviction or
sentence, while §2241 “is appropriate for claims
challenging the execution or manner in which the sentence is
served.” United States v. Peterman, 249 F.3d
458, 461 (6th Cir. 2001). Therefore, federal prisoners
“that seek to challenge their convictions or imposition
of their sentence” must assert such claim in the
sentencing court under § 2255. See Charles v.
Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). 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). Petitioner cannot raise claims in a §
2241 Petition when his attempts to obtain relief under
§2255 for those claims are unsuccessful.
2255 does contain a “safety valve” provision
which permits a federal prisoner to challenge his conviction
or the imposition of his sentence under 28 U.S.C. §
2241; however, relief under that provision is extremely rare.
Federal prisoners may challenge their convictions or
sentences in a § 2241 Petition only if there is a change
in the law after his conviction that establishes his actual
innocence and 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); United States v.
Peterman, 249 F.3d 458, 462 (6th Cir. 2001); In re
Hanserd, 123 F.3d 922, 929 (6th Cir. 1997). Actual
innocence in this context means that the intervening change
in the law renders the conduct of which Petitioner was
convicted no longer a crime. See Martin v. Perez,
319 F.3d 799, 804 (6th Cir. 2003); Peterman, 249
F.3d at 462; Bousley v. United States, 523 U.S. 614,
the remedy under § 2255 is not inadequate or ineffective
merely 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 § 2255
Motion to Vacate. Charles v. Chandler, 180 F.3d 753,
756 (6th Cir. 1999). In other words, Petitioner must point to
a new decision holding that the substantive criminal statute
under which he was convicted no longer reaches the conduct in
which he engaged, and he must demonstrate that he cannot
obtain relief based on this new decision from the sentencing
court. Bousely, 523 U.S. at 620 (citing Davis v.
United States, 417 U.S. 333, 346 (1974)). 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).
challenge to his indictment attacks his conviction. As such,
his sole remedy is a Motion to Vacate under § 2255
unless he can show that the safety valve provision applies.
already raised this claim in his § 2255 Motion to
Vacate. Both times the issue was decided on the merits by the
Indiana District Court. His remedy under § 2255 is not
ineffective merely because he did not prevail on his Motion.
He cannot assert this claim under 28 U.S.C. § 2241.
Petitioner's Application to Proceed In Forma
Pauperis is granted, his 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. ...