
    Derrick J. ROBINSON, Petitioner, v. John HEMINGWAY, Respondent,
    No. 01-CV-72682-DT.
    United States District Court, E.D. Michigan, Southern Division.
    Aug. 27, 2001.
    
      Derrick Robinson, Milan, MI, pro se.
   OPINION AND ORDER OF SUMMARY DISMISSAL

EDMUNDS, District Judge.

Derrick J. Robinson, (“petitioner”), a federal prisoner confined at the Federal Correctional Institution in Milan, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application, filed pro se, petitioner challenges his plea-based conviction and sentence on one count of conspiracy to distribute and possess cocaine base for intended distribution, 21 U.S.C. § 846; and one count of carrying a firearm during a drug trafficking offense, 18 U.S.C. § 924(c). In his habeas petition, petitioner brings several challenges to his criminal conviction and sentence based upon the recent case of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the U.S. Supreme Court held that any fact that increases or enhances a penalty for the crime beyond the prescribed statutory maximum for the offense must be submitted to the jury and proven beyond a reasonable doubt. For the reasons stated below, the petition for writ of habe-as corpus is SUMMARILY DISMISSED.

I. BACKGROUND

Petitioner pleaded guilty to the above offenses in the United States District Court for the Northern District of Ohio. Petitioner subsequently filed a motion to withdraw his guilty plea, which was denied. Petitioner was sentenced to a term of imprisonment of 192 months on the drug conviction and received a consecutive 60 month sentence on the firearm conviction. Petitioner’s case was affirmed on direct appeal. United States v. Brown, 42 F.3d 1389, 1994 WL 683936 (6th Cir.1994). Petitioner thereafter filed a post-conviction motion to vacate sentence pursuant to 28 U.S.C. § 2255, which was denied. Robinson v. United States, U.S.D.C. 96-CV-7003 (N.D.Ohio August 2, 1996) aff'd 168 F.3d 490, 1998 WL 792043 (6th Cir. November 2, 1998). Petitioner has now filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he claims that his conviction and sentence must be set aside based upon the U.S. Supreme Court’s recent holding in Apprendi v. New Jersey, supra.

II. DISCUSSION

A motion to vacate sentence under § 2255 is the proper avenue for relief as to a federal inmate’s claims that his or her 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 or her 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. 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. Thus, the mere fact that the provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) might prevent petitioner from filing a second or successive motion to vacate or set aside the sentence, in the absence of newly discovered evidence or a new rule of constitutional law, would not render the remedy provided by such motion inadequate or ineffective to allow him to petition for habeas corpus relief. Hervey v. United States, 105 F.Supp.2d 731, 733 (E.D.Mich.2000)(O’Meara, J.).

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 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. Charles v. Chandler, 180 F.3d at 757. As the Sixth Circuit has pointed out, these “actual innocence” cases all arose from a “common factual scenario”, where prisoners who had been convicted under 18 U.S.C. § 924(c)(1) for using a firearm during a drug or violent crime found themselves to be innocent of that crime when the U.S. Supreme Court subsequently defined “use” in a restrictive manner in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). United States v. Peterman, 249 F.3d at 462. However, the prisoners were barred from § 2255 relief because successive § 2255 petitions were limited only to newly discovered evidence or a new and retroactive rule of constitutional law. Id.

In the present case, petitioner has not demonstrated that his remedy under § 2255 is inadequate or ineffective for bringing an Apprendi based challenge to his conviction. In this case, petitioner has already filed one § 2255 motion to vacate sentence, which was denied. Under the AEDPA petitioner is unable to file a second or successive motion to vacate sentence under § 2255 unless he first obtains permission from the Sixth Circuit by showing either:

(1) that he has newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255 ¶ 8.

Petitioner admittedly has a problem with bringing an Apprendi challenge in a second or successive motion to vacate sentence under § 2255, because the Sixth Circuit has held that the U.S. Supreme Court’s holding in Apprendi has not been made retroactive to cases on collateral review for the purpose of authorizing a second or successive motion to vacate sentence. See In Re Clemmons, 259 F.3d 489 (6th Cir.2001). The Sixth Circuit based its decision on the recent U.S. Supreme Court case of Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001), in which the U.S. Supreme Court held that for purposes of § 2244(b)(2)(A), a new rule of law is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. Id. at 2482. In order for a second or successive petition to be authorized under § 2244(b)(2)(A) and § 2255 ¶ 8(2), the U.S. Supreme Court must explicitly hold that its decision is retroactive to cases on collateral review. In re Clemmons, 259 F.3d 489, 492-93 (6th Cir.2001) (citing to Tyler v. Cain, 121 S.Ct. at 2481-2482). Because the U.S. Supreme Court has not yet made Apprendi retroactive to cases on collateral review, the Sixth Circuit concluded that the movant in Clemmons had failed to satisfy the requirements of § 2255 ¶ 8(2) for bringing a second or successive motion to vacate sentence. Id.

Although petitioner is unable to currently file a second or successive motion to vacate sentence under § 2255, this does not render his remedy under § 2255 inadequate or ineffective for bringing an Apprendi based challenge to his conviction. A § 2241 petition for writ of habeas corpus is not available as an alternative mechanism for bringing Apprendi based collateral attacks on a criminal conviction and § 2255 remains the sole vehicle that would be appropriate and available for such collateral attacks. Young v. Conley, 128 F.Supp.2d 354, 357 (S.D.W.Va.2001). The fact that Apprendi has not yet been made retroactive to cases on collateral review does not make petitioner’s remedy under § 2255 an inadequate or ineffective remedy so as to permit him to bring an Apprendi challenge in a petition for writ of habeas corpus under § 2241. Relief under § 2255 will become available to petitioners who have previously filed a § 2255 motion if and when Apprendi is made retroactively applicable to cases on collateral review. Bridges v. Vasquez, 151 F.Supp.2d 1353, 1355 (N.D.Fla.2001). Thus, an Apprendi claim may not be brought under § 2241 when § 2255 may “in due course provide adequate and effective relief for any well-founded Apprendi claim.” Id. For prisoners like petitioner who have previously filed § 2255 motions, successive challenges to their conviction based upon Apprendi must await Supreme Court action making this constitutional rule retroactive. Young, 128 F.Supp.2d at 357.

In the present case, petitioner has failed to demonstrate that his remedy under § 2255 is inadequate or ineffective. Furthermore, petitioner has failed to make a claim of actual innocence. The Court will therefore dismiss the current habeas petition.

III. ORDER

IT IS ORDERED that Petitioner’s application for writ of habeas corpus under 28 U.S.C. § 2241 IS DISMISSED.  