BENDER v. O'BRIEN

HENRY WILHOIT, Senior District Judge

Terry J. Bender, an individual currently incarcerated in the Federal Correctional Institution in Ashland, Kentucky, has submitted a pro se petition for writ of habeas corpus and paid the district court filing fee.

This matter is now before the Court for screening. 28 U.S.C. $2243; Demjanjukv. Pertovsky, 612 F. Supp. 571 (N.D. Ohio 1985) (citing Allen v. Perini, 424 F.2d 134,141 (6th Cir. 1970), cert. denied, 400 U.S. 906 (1970); accord Aubut v. State of Maine, 431 F.2d 688,689 (1st Cir. 1970)).

The petitioner claims that (1) his conviction and sentence were obtained in violation of his due process rights; and (2) this Court should grant him relief because his remedy by a 28 U.S.C. $2255 motion to the trial court is inadequate and ineffective to test the legality of his detention.

The petitioner has submitted a petition form, an attached memorandum, and several exhibits in an Appendix [Record No. 11. The following is a summary or construction of the allegations contained therein.

The petitioner was indicted on certain drug charges in the Northern District of Ohio, United Stutes v. Bender, No. 1:93-CR-044. He claims that on May 28, 1993, he, his counsel, and two Assistant United States Attorneys ("AUSA"), including one named Sharon L. Long, entered into what he calls a "deal," a verbal agreement whereby he would plead guilty to three counts of the superseding indictment and the United States would dismiss charges against his mother, Bertha Williams.

The petitioner claims that he pled guilty and the Court accepted his plea on June 11, 1993. On August 9, 1993, the day before his scheduled sentencing, he obtained new counsel and moved the Court to withdraw his plea. Appendix documents [hereinafter "App."] 2 and 3 are excerpts from the sentencing hearing held a few days later. AUSA Long purportedly perjured herself therein, with regard to the plea negotiations. The Court denied the motion to vacate his plea and sentenced him to 360 months, an amount calculated in the presentence report but purportedly in excess of the months discussed in the plea negotiations. The Sixth Circuit affirmed the trial court in all respects. United States v. Bender, 41 F.3d 1508 (6^th Cir. 1994).

The petitioner alleges that it was not until approximately November 1, 2002, that he found an important relevant document which he had not seen before. In the Government's written response to the motion to vacate his guilty plea, which was filed on August 10, 1993, Long admitted that the petitioner had entered into the plea agreement in order to have charges against his mother dismissed. App. 5.

Thereafter, the petitioner began a series of maneuvers attacking his conviction and sentence in the trial court. Appendix 6 is that Court's memorandum opinion and order of May 21, 2003, which chronicles two $2255 motions, two Rule 60(b) motions to reconsider, an unsuccessful petition for mandamus relief in the Sixth Circuit, with a later motion to reconsider it also. According to the Court's account, after the petitioner was "rejected for the eighth time," he sought permission fiom the Sixth Circuit in order to bring a successive $2255 motion, and this, too, was denied. When the petitioner went back to the trial court with another Rule 60(b) motion, which also contained other motions, including a motion for the Court to recuse, the trial court denied relief, in a memorandum opinion of April 26, 2004, writing as follows:

Bender's motion for relief fiom judgment concerns his plea and his mother's involvement in his case which has been the subject of other motions he had filed. Although he presents a new theory, he has not explained why he could not have submitted the current issue in previous motions.

App. 6. The Court ended its opinion with an order to transfer the matter to the Sixth Circuit as a request for permission to bring a successive $2255 motion. When the petitioner appealed that result, the Sixth Circuit issued two opinions, the first recounting the petitioner's litigious history and affirming the trial court's rulings in all respects. App. 7. In the second Order, the appellate court specifically considered whether to permit a successive $2255 motion and held as follows:

Bender is not entitled to the relief he seeks because his motion does not meet the requirements of §§ 2244(b) and 2255. Bender's claim is not based on newly discovered evidence. Similarly, Bender's motion involves no previously unavailable rule of constitutional law made retroactive to cases on collateral review, and thus fails to come within the ambit of $2255 para. 8 (2).

App. 8. The petitioner next filed a civil lawsuit for damages against the United States and Long, but it was dismissed, sua sponte, pursuant to 28 U.S.C. 1915A and Heck v. Humphrey, 512 U.S. 477 (1994) on November 30, 2004.

Two months later, on January 31, 2005, the petitioner filed the instant $2241 proceeding.

The general rule is that 28 U.S.C. $2255 relates to conviction and imposition of sentence and such issues must be brought before the trial court. A petition for writ of habeas corpus pursuant to 28 U.S.C. $2241 is to be brought in the district where a petitioner is incarcerated and may only challenge execution of sentence, such as the computation of parole or sentence credits. See DeSimone v. Lacy, 805 F.2d 321,323 (8th Cir. 1986) (per curiam); Cohen v. Unitedstates, 593 F.2d 766,770-71 (6th Cir. 1979). Despite his repeated assertions, the instant petitioner's claim relates to the sentence imposed by the federal district court in the Northern District of Ohio and not to how the sentenced is being executed. Therefore, the claim is not ordinarily a cognizable claim for this Court under 28 U.S.C. $2241.

The petitioner is correct, however, to the extent that he claims that under highly exceptional circumstances a federal prisoner may challenge his sentence before the district court in the district of his incarceration, rather than going to the trial court with a $2255 motion. This is based on certain language in the fifth paragraph of 28 U.S.C. $2255, which provides that a district court may exercise jurisdiction over $2255 claims under 28 U.S.C. $2241. Commonly called the "savings clause" of $2255, such use of $2241 is conditioned upon the petitioner's establishing that "the remedy by [#2255] motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. $2255; Cohen v. United States, 593 F.2d at 770-71.

Use of the savings clause has undergone an upsurge in popularity with prisoners in recent years. In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court of the United States interpreted the "use" prong of 18 U.S.C. $924(c)(1) narrowly, to require "active employment" of a firearm in order to sustain a conviction for use of a firem in relation to a drug offense. Numerous prisoners who had been convicted under a broader understanding of the "use" component for conduct which, after Bailey, was not considered criminal conduct, suddenly had claims of actual innocence.

Claimants under the Supreme Court's Bailey opinion, however, were often effectively barred from bringing their claims because they had already filed a $2255 motion, and successive motions had become difficult to obtain because of Congress's enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), effective April 24, 1996. The new legislation imposed several statutory restrictions on prisoners' ability to file habeas petitions under 28 U.S.C. $42254 and 2255, including a one-year statute of limitations and the stringent requirement that a prisoner who has already filed an unsuccessful $2255 motion and who wishes to raise issues in a second or successive motion must receive pre-authorization from the appropriate circuit court. Therefore, since 1996 and up to today, prisoners like the instant petitioner have tried to meet the conditions of the savings clause of $2255, so that they may use $2241 to bring a successive or untimely $2255 claim. See United States v. Peterman, 249 F.3d 458,461 (6^th Cir.), cert. denied, 534 U.S. 1008 (2001).

In Charles v. Chandler, 180 F.3d 753,757 (6^th Cir. 1999), and as amended later in Martin v. Perez, 319 F.3d 799 (6^th Cir. 2003), the Sixth Circuit has set out the threshold which must be met by $2241 petitioners who wish the Court in the district of their confinement to entertain a challenge to a conviction or sentence which would ordinarily be brought to the trial court pursuant to $2255. The appellate court has required first that a petitioner demonstrate that his remedy under $2255 is truly "inadequate" or "ineffective," and neither an earlier unsuccessful 42255 motion nor a time bar will meet this standard. 180 F.3d at 757. The burden is on the petitioner to demonstrate inadequacy or ineffectiveness as a threshold matter. Id. at 756. The second component which must be demonstrated is that the 82241 petitioner has a claim of "actual innocence," as did Petitioner Martin. 319 F.3d at 804-05.

Consistent therewith, this Court evaluates whether the instant petitioner has established both of the two requisite pre-conditions so that the Court may use 82241 to decide his challenge to his sentence on the merits, i.e., whether: (1) he has been barred from filing a $2255 motion to raise an innocence claim; and (2) he is making a claim of actual innocence based on an intervening Supreme Court decision which narrowly defines a term of the statute under which he was convicted. Then and only then will this Court be able to address the merits of his claim under 28 U.S.C. 82241.

The Court has studied the instant petitioner's use ofthe "inadequate and ineffective" language herein and finds that Petitioner Bender has failed to establish one of the two prerequisites for use of $2241. He does not claim actual innocence of the crime for which he was convicted and sentenced, based upon an intervening Supreme Court case interpreting that crime. Actual innocence is discussed at length in Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court of the United States therein writing, "TO establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 623. The Court went on, "It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency. . . ." Id. at 623-24.

Case law distinguishes claims falling under the label of "legal innocence" from claims of "actual innocence" of the underlying offense charged in the indictment. See Hernandez-Escarsega v. Morris, 2002 WL 845060 (10th Cir. May 3, 2002) (Table, unpublished) (the court distinguishing claims of legal innocence from claims of actual, or factual innocence); Reyes-Requena v. United States, 243 F.3d 893,903-04 (5th Cir. 2001) ("[Tlhe core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law"); Whitener v. Snyder, 23 Fed. Appx. 257, 2001 WL 1178302 (6th Cir. 2001) (same).

At most, like the unsuccessful petitioner in In re Davenport, 147 F.3d 605 (7^th Cir. 1998), the instant petitioner "is innocent . . . only in the technical sense." Id. at 609. When confronted with a similar claim in this circuit, in Ward v. Snyder, 238 F.3d 426, 2000 WL 1871725 (6^th Cir. 2000) (unpublished), the appellate court in this circuit cited to Bailey and Charles v. Chandler and noted that one of Petitioner Ward's failures therein was that he did not "cite to any intervening change in the law which reflects that he may be actually innocent of his crimes." Id. at **2. In fact, the Sixth Circuit wrote, "it is unclear whether and to what extent someone like [the petitioner] can show actual innocence in relation to his claims that challenge the imposition of his sentence." Id. Additional Sixth Circuit opinions are consistent with the analysis and result herein. See Szabo v. Snyder, 83 Fed.Appx. 738, 2003 WL 22976633 (6^th Cir. 2003) (unpublished); Leon v. Hemingway, 53 Fed.Appx. 353 (6^th Cir. 2002) (unpublished).

Therefore, the instant petitioner having failed to pass the threshold of demonstrating that he is actually innocent of criminal conduct under an intervening ruling handed down by the Supreme Court of the United States, his petition must be denied and his cause dismissed.

Accordingly, IT IS ORDERED as follows:

(1) Petitioner Bender's petition for wit of habeas corpus is DENIED.

(2) This action will be DISMISSED, sua sponte, from the docket of the Court, and Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the Respondent.