Opinion
Civil No. 03-CV-72226-DT
July 18, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
Donald K. Lane, (petitioner), currently incarcerated at the Federal Correctional Institution in Milan, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his pro se application, petitioner challenges his conviction and sentence for one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). For the reasons stated below, the § 2241 petition for writ of habeas corpus is SUMMARILY DISMISSED.
I. Background
Petitioner was convicted of the above offense following a jury trial in the United States District Court for the Western District of Wisconsin. Petitioner's conviction was affirmed on appeal. United States v. Lane, 267 F.3d 715 (7th Cir. 2001). Petitioner thereafter filed a post-conviction motion to vacate sentence pursuant to 28 U.S.C. § 2255, which was denied. Lane v. United States, 02-304-C (W.D. Wis. July 17, 2002); appeal dism. U.S.C.A. 02-3170 (7th Cir. February 11, 2003); cert. den. 123 S.Ct. 1814 (2003).Petitioner has now filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he seeks relief from his conviction on the following ground:
The Petitioner is actually innocent of one count in (sic) violation of 18 U.S.C. § 922(g)(1).
II. Discussion
The petition for writ of habeas corpus must be dismissed, because petitioner is challenging his conviction and sentence in this case by the United States District Court for the Western District of Wisconsin.A motion to vacate sentence under § 2255 is the proper avenue for relief as to a federal inmate's claims that his sentence was imposed in violation of the federal constitution or laws. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). A federal prisoner may bring a claim challenging his conviction or the imposition of sentence under 28 U.S.C. § 2241 only if it appears that the remedy afforded under § 2255 is inadequate or ineffective to test the legality of the defendant's detention. Charles v. chandler, 180 F.3d 753, 756 (6th Cir. 1999). Habeas corpus is not an additional, alternative, or supplemental remedy to the motion to vacate, set aside, or correct the sentence. Id. at 758; Robinson v. Hemingway, 175 F. Supp.2d 915, 916 (E.D. Mich. 2001). The burden of showing that the remedy afforded under § 2255 is inadequate or ineffective rests with the petitioner and the mere fact that a prior motion to vacate sentence may have proven unsuccessful does not necessarily meet that burden. In Re Gregory, 181 F.3d 713, 714 (6th Cir. 1999). The remedy afforded under § 2255 is not considered inadequate or ineffective simply because § 2255 relief has already been denied, or because petitioner has been procedurally barred from pursuing relief under § 2255, or because the petitioner has been denied permission to file a second or successive motion to vacate sentence. Charles v. Chandler, 180 F.3d at 756.
The circumstances under which a motion to vacate sentence brought pursuant to § 2255 might be deemed inadequate and ineffective so as to permit relief via a writ of habeas corpus under § 2241 are narrow, as the "liberal allowance" of the writ would defeat the restrictions placed on successive petitions or motions for collateral relief imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA). United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). To date, no federal circuit court has permitted a post-AEDPA petitioner who was not effectively making a claim of `actual innocence' to use § 2241 (via § 2255's savings clause) as a way of circumventing § 2255's restriction on the filing of a second or successive motion to vacate sentence. Hervey v. United States, 105 F. Supp.2d 731, 733 (E.D. Mich. 2000) (citing to Charles v. Chandler, 180 F.3d at 757).
In the present case, petitioner claims that he is actually innocent of being a felon in possession of a firearm, because he only momentarily possessed the firearm in this ease while discussing the purchase of this firearm for his girlfriend. Petitioner claims that he is actually innocent of being a felon in possession of a firearm, because his brief handling of the rifle during the transaction did not qualify as "possession", for purposes of 18 U.S.C. § 922(g)(1).
Petitioner is unable to invoke an "actual innocence" exception to permit him to challenge his federal conviction pursuant to § 2241 for several reasons. First, to the extent that petitioner's argument could be considered a claim of actual innocence, petitioner already raised this claim on his direct appeal before the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit rejected this claim, finding that petitioner's momentary handling of the gun in this case satisfied the legal definition of possession, as a matter of law, for purposes of 18 U.S.C. § 922(g)(1). United States v. Lane, 267 F.3d at 717-719. A federal prisoner who claims to be actually innocent of the crime for which he was convicted, but who has never had "an unobstructed procedural shot" at presenting his claim of actual innocence, may resort to a § 2241 habeas petition if the possibility of relief under § 2255 is foreclosed. Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). A federal district court can therefore invoke habeas jurisdiction pursuant to 28 U.S.C. § 2241 over cases involving federal prisoners who can prove actual innocence and who could not have effectively raised their claim of innocence at an earlier time. Cephas v. Nash, 328 F.3d 98, 104 (2nd Cir. 2003) (internal citations omitted). Because petitioner was able to raise this claim on his direct appeal before the Seventh Circuit, he may not raise it a second time before this Court in a petition for writ of habeas corpus. Habeas corpus relief is unavailable to a federal prisoner whose claims have already been ruled upon adversely in a prior proceeding. See e.g. Sandles v. Scott, 26 F. Supp.2d 1355, 1356-1357 (N.D. Ga. 1998) (denying habeas petition when petitioner's claims had already been ruled upon adversely in his prior motion to vacate sentence). Because petitioner's actual innocence claim is merely a "re-hash" of the sufficiency of evidence claim that he raised on his direct appeal, he is unable to raise this claim anew in a § 2241 petition for writ of habeas corpus. See King v. Thoms, 54 Fed. Appx. 435, 438 (6th Cir. 2002); cert. den. ___ U.S. ___; 2003 WL 21182490 (U.S. June 9, 2003).
Secondly, petitioner's claim involves a claim of legal insufficiency of the evidence, not factual innocence. The U.S. Supreme Court has indicated that actual innocence means factual innocence, not mere legal insufficiency. Bousley v. United Sates, 523 U.S. 614, 623 (1998). A federal prisoner's argument based upon the mere insufficiency of evidence does not satisfy the actual innocence requirement for bringing a § 2241 petition to attack his conviction. See Scott v. Morrison, 58 Fed. Appx. 602, 603 (6th Cir. 2003).
Because the instant petition is facially insufficient to grant habeas relief, the petition is subject to summary dismissal. See Perez v. Hemingway, 157 F. Supp.2d 790, 796 (E.D. Mich. 2001).
III. ORDER
Based upon the foregoing, the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.