United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING HABEAS 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.
Movant, John Anthony Bailey, filed a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(ECF No. 1.) For the following reasons, the § 2241
petition will be denied.
January 26, 2004, a federal grand jury returned a three-count
indictment against Bailey. (No. 04-10007, Crim. ECF No. 1.)
Count one charged him with possession of a firearm after
conviction of a felony, in violation of 18 U.S.C. §
922(g). Count two charged Bailey with armed robbery, in
violation of 18 U.S.C. § 1951, and count three charged
him with using, carrying, and brandishing a firearm during
and in relation to the armed robbery charged in count two, in
violation of 18 U.S.C. § 924(c). On June 16, 2004, a
jury convicted Bailey on count one, but announced they could
not reach a verdict on counts two and three. (Id.
Crim. ECF No. 27, 32.) The Court declared a mistrial on
counts two and three, (id. Crim. ECF No. 33), and
later dismissed those counts on motion of the United States.
(Id. Crim. ECF No. 43.)
hearing on December 30, 2004, the Court determined that
Bailey was subject to an enhanced sentence under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and
sentenced him to a 262-month term of imprisonment, to be
followed by a three-year period of supervised release.
(Id. Crim. ECF No. 65.) Bailey appealed, and the
Sixth Circuit Court of Appeals affirmed the conviction but
vacated and remanded for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005). United States
v. Bailey, No. 05-5121 (6th Cir. Sept. 13, 2006).
resentencing, the Court sentenced Bailey to a 204-month term
of imprisonment, again followed by a three-year period of
supervised release. (No. 04-10007, Crim. ECF No. 104;
id. Resent'g Tr., Crim. ECF No. 109.) On appeal,
the Sixth Circuit affirmed. United States v. Bailey,
264 Fed.Appx. 480 (6th Cir.), cert. denied, 554 U.S.
filed a timely motion pursuant to 28 U.S.C. § 2255 on
June 19, 2009, which was ultimately denied as to all issues.
Bailey v. United States, No. 09-1140-JDT-egb (W.D.
Tenn. Sept. 13, 2012). The Court also denied Bailey's
motion to alter or amend the judgment. (No. 09-1140, ECF No.
44.) He appealed, and the Sixth Circuit denied a certificate
of appealability. Bailey v. United States, No.
13-6623 (6th Cir. Aug. 8, 2014).
then filed the present § 2241 petition on June 7, 2016.
One of the claims raised in the petition is that his
predicate convictions no longer qualify him for an enhanced
sentence under the ACCA, based on the decision in Johnson
v. United States, 135 S.Ct. 2551 (2015). However, on
April 6, 2016, Bailey filed a motion in the Sixth Circuit
seeking leave to file a second or successive § 2255
motion raising the same Johnson claim. The Sixth
Circuit granted leave to file the successive § 2255 and
transferred the proceeding to this Court, where it was opened
as case number 16-1264. Therefore, Bailey's
Johnson claims will be addressed in that § 2255
proceeding rather than in this case.
§ 2241 petition also asserts, however, that he is
“actually innocent” of the felon-in-possession
charge, invoking the “savings clause” of §
2255. Specifically, he argues that the evidence offered at
trial was not sufficient to support a conviction under 18
U.S.C. § 922(g). (ECF No. 1-2 at PageID 21-24.) That
claim was rejected by the Sixth Circuit in Bailey's first
direct appeal. See No. 05-5121, slip op. at 2-3 (No.
04-10007, Crim. ECF No. 75 at PageID 68-69). Bailey then
raised the claim in a cursory manner in his first § 2255
proceeding, but this Court denied relief on that issue.
(See No. 09-1140, ECF No. 22 at PageID 166-67.)
prisoners may obtain habeas corpus relief pursuant to 28
U.S.C. § 2241 only under limited circumstances. The
“savings clause” in § 2255 provides as
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). Therefore, habeas
relief under § 2241 is not available unless relief under
§ 2255 is inadequate or ineffective. Bailey 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. ...