United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING PETITION PURSUANT TO 28 U.S.C.
§ 2241, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD
FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE.
Robert Derek Bell-El, Bureau of Prisons register number
17394-076, who is incarcerated at the Federal Correctional
Institution in Memphis, Tennessee (FCI Memphis),
filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (ECF No. 1.) For the
following reasons, the § 2241 petition will be denied.
February 21, 2006, a federal grand jury returned a
superseding indictment against Bell-El, charging him with
three counts of bank robbery in violation of 18 U.S.C. §
2113(a). (No. 05-10077, Crim. ECF No. 15.) Trial began on
October 25, 2006, and on October 27, 2006, the jury returned
a verdict of guilty on all three counts. (Id., Crim.
ECF Nos. 37, 38, 39, 40 & 41.) At a hearing on January
25, 2007, the Court found that Bell-El qualified as a career
offender under U.S.S.G. §4B1.1. He was sentenced to
concurrent prison terms of 240 months on each of counts one
and two and a consecutive 22-month term of imprisonment on
count three, for an effective sentence of 262 months.
(Id., Crim. ECF No. 50; see also id.,
Sent'g Tr., Crim. ECF No. 59 at PageID 313-18.) The Court
also imposed a three-year period of supervised release.
(Id.) Judgment was entered on January 29, 2007
(id., Crim. ECF No. 51), and an amended judgment was
entered on February 6, 2007 (id., Crim. ECF No. 53).
On appeal, the Sixth Circuit affirmed. United States v.
Bell, 259 Fed.Appx. 733 (6th Cir. 2008).
§ 2241 petition, Bell-El contends the consecutive
22-month sentence on count three was imposed as a result of
an incorrect application of the U.S. Sentencing Guidelines.
Specifically, he contends the Probation Officer who prepared
the Presentence Report (PSR) erroneously grouped the three
counts of bank robbery under U.S.S.G. § 3D1.2.
Consequently, Bell-El argues that he should be re-sentenced
with the sentences on all three counts to run concurrent.
prisoners may obtain habeas corpus relief pursuant to 28
U.S.C. § 2241 only under limited circumstances. The
“savings clause” in 28 U.S.C. § 2255
provides as follows:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
28 U.S.C. § 2255(e).
Construing this language, courts have uniformly held that
claims asserted by federal prisoners that seek to challenge
their convictions or imposition of their sentences shall be
filed . . . under 28 U.S.C. § 2255, and that claims
seeking to challenge the execution or manner in which the
sentence is served shall be filed . . . under 28 U.S.C.
Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir.
1999) (per curiam) (citations omitted). In this case, Bell-El
is attacking the imposition of his sentence by this Court;
therefore, habeas relief under § 2241 is not available
to him unless relief under § 2255 is inadequate or
ineffective. Bell-El carries the burden of demonstrating that
the savings clause applies. Id. at 756.
Sixth Circuit has construed the savings clause narrowly:
“Significantly, the § 2255 remedy is not
considered inadequate or ineffective simply because §
2255 relief has already been denied, or 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 motion to
vacate.” Id. (citations omitted). After its
decision in Charles, the Sixth Circuit reemphasized
the narrow scope of the savings clause:
The circumstances in which § 2255 is inadequate and
ineffective are narrow, for to construe § 2241 relief
much more liberally than § 2255 relief would defeat the
purpose of the restrictions Congress placed on the filing of
successive petitions for collateral relief. As we explained
in Charles, “[t]he remedy afforded under
§ 2241 is not an additional, alternative or supplemental
remedy to that prescribed under § 2255.”
United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001) (quoting Charles, 180 F.3d at 758)
(additional citation omitted).
order to demonstrate that relief under § 2255 is
inadequate or ineffective, the petitioner must be claiming
that he is “actually innocent” of the crime of
which he has been convicted. Martin v.
Perez, 319 F.3d 799, 804-05 (6th Cir. 2003); see
also Charles, 180 F.3d at 757 (“No circuit court
has to date permitted a post-AEDPA petitioner who was not
effectively making a claim of ‘actual innocence' to
utilize § 2241 (via § 2255's ‘savings
clause') as a way of circumventing § 2255's
restrictions . . . .”). “Actual innocence means
factual innocence.” Paulino v. United States,
352 F.3d 1056, 1061 (6th Cir. 2003) (citing Bousley v.
United States, 523 U.S. 614, 623 (1998)).
Court of Appeals has not permitted prisoners to use the
savings clause to attack their sentences, even if the
argument is couched in “actual innocence”
language. See Jones v. Castillo, 489 Fed.Appx. 864,
866 (6th Cir. 2012) (per curiam) (“Jones argues that
the exception applies to his first claim because . . . he is
actually innocent of being an armed career criminal. However,
he does not argue that he is actually innocent of being a
felon in possession of a firearm. Claims alleging
‘actual innocence' of a sentencing enhancement
cannot be raised under § 2241.”); Hayes v.
Holland, 473 Fed.Appx. 501, 502 (6th Cir. 2012)
(“Hayes does not assert that he is actually innocent of
his federal offenses. Rather, he claims actual innocence of
the career offender enhancement. The savings clause of
section 2255(e) does not apply to sentencing claims.”);
Green v. Hemingway, 67 Fed.Appx. 255, 257 (6th Cir.