Opinion
CASE NO. 4:18 CV 2695
02-07-2019
ANDRE VAN, Petitioner, v. MARK WILLIAMS, Warden, Respondent.
MEMORANDUM OF OPINION & ORDER
Pro Se Petitioner Andre Van, a federal prisoner incarcerated at the Elkton Federal Correctional Institution in Lisbon, Ohio, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) In his petition, he challenges the constitutionality of his sentence. For the following reasons, the petition is dismissed.
On December 21, 2006, a jury convicted Van of drug distribution, possession of a firearm in furtherance of drug trafficking, and possession of a firearm by a convicted felon in the District Court for the Eastern District of Michigan. See United States v. Van, No. 05-90038, 2013 WL 628574, at *1 (E.D. Mich. Feb. 20, 2013). On February 20, 2008, the court sentenced Van to 360 months' imprisonment. Id. Van states in his petition that as part of his sentencing, he was classified as a career offender under the United States Sentencing Guidelines because of a prior Michigan state conviction and received an enhanced sentence under the Sentencing Guideline's residual clause (§ 4B1.1). (See Doc. 1 at 4.)
Van appealed his conviction and sentence to the Sixth Circuit Court of Appeals, which affirmed them on June 29, 2011. (Id. at 1.) The Supreme Court denied Van's writ of certiorari on January 17, 2012. (Id.) On September 24, 2012, Van filed a timely motion to vacate his sentence pursuant to 28 U.S.C. § 2255 attacking his conviction, and it also was denied. (Id. at 2.)
The petition must be dismissed. District courts conduct a preliminary review of habeas corpus petitions to determine "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 (applicable to habeas petitions under §2241 pursuant to Rule 1(b)). If so, the petition must be summarily dismissed. See Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 141 (6th Cir. 1970) (the district court has "a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face").
Generally, habeas corpus petitions challenging the validity of a federal conviction or sentence are brought under 28 U.S.C. § 2255, whereas habeas petitions challenging the manner or execution of a sentence are brought under 28 U.S.C. § 2241. Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016). In Hill v. Masters, the Sixth Circuit held that a sentence-enhancement claim may be raised in a § 2241 petition in a "narrow subset" of cases by prisoners:
(1) . . . who were sentenced under the mandatory guidelines regime pre- United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed. 621 (2005), (2) who are foreclosed from filing a successive petition under § 2255, and (3) when a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement.Id. at 599-600.
Van's petition on its face does not fall within Hill's exception. He was not sentenced under the mandatory guideline regime pre-United States v. Booker, but was sentenced post-Booker, on February 20, 2008. (See Doc. 1 at 1.)
Accordingly, Petitioner's § 2241 petition for writ of habeas corpus is dismissed. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED. February 7, 2019
Date
/s/ John R . Adams
John R. Adams
United States District Judge