Simons v. Hanson, No. 1:2015cv02666 - Document 3 (N.D. Ohio 2016)

Court Description: Memorandum Opinion and Order. Simons seeks to raise issues that could and must be raised in a 2255 motion. The petition sets forth no reasonable suggestion of a proper basis on which to instead raise these issues pursuant 28 U.S.C. § 22 41, or that serious constitutional questions require further consideration of his claims. re 1 Petition for Writ of Habeas Corpus (2241) filed by David Simons. Accordingly, this action is dismissed pursuant to 28 U.S.C. § 2243. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge John R. Adams on 1/6/2016. (R,Sh)

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Simons v. Hanson Doc. 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO DAVID SIMONS, Petitioner, v. R. HANSON, Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 1:15 CV 2666 JUDGE JOHN R. ADAMS MEMORANDUM OF OPINION AND ORDER INTRODUCTION On December 22, 2015, petitioner pro se David Simons, an inmate at the Federal Correctional Institution at Elkton (“FCI Elkton”), filed the above-captioned habeas corpus action under 28 U.S.C. § 2241. Simons was convicted in this court in November 2014, pursuant to a guilty plea, of conspiracy to commit wire fraud and making a false statement to law enforcement. He was sentenced to 33 months incarceration, with 3 years supervised release. See, United States v. Simons, N.D. Ohio Case No. 1:13 CR 287. As grounds for the petition, he asserts his incarceration violates due process because respondent FCI Elkton Warden Hansen is detaining him without a valid commitment order. For the reasons stated below, this action is dismissed. LAW AND ANALYSIS Habeas corpus petitions brought pursuant to 28 U.S.C. § 2241 address the execution of a sentence, while motions filed pursuant to 28 U.S.C. § 2255 test the validity of a judgment and sentence. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998)(citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)). Section 2255 provides in pertinent part: Dockets.Justia.com [a]n 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. The terms "inadequate" or "ineffective" do not mean that habeas corpus relief is available whenever a federal prisoner faces a substantive or procedural barrier to § 2255 relief, including the denial of a previously filed section 2255 motion. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). Rather, the “savings clause” applies when the failure to allow some form of collateral review would raise “serious constitutional questions.” Frost v. Snyder, 13 Fed.Appx. 243, 248 (6th Cir. 2001)(unpublished disposition)(quoting Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997)). The petitioner bears the burden of proving that the section 2255 remedy is inadequate or ineffective. Charles, 180 F.3d at 756 (citing McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)). Simons seeks to raise issues that could and must be raised in a 2255 motion. The petition sets forth no reasonable suggestion of a proper basis on which to instead raise these issues pursuant 28 U.S.C. § 2241, or that “serious constitutional questions” require further consideration of his claims. CONCLUSION Accordingly, this action is dismissed pursuant to 28 U.S.C. § 2243. The court 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. Date: January 6, 2016 /s/ John R. Adams JOHN R. ADAMS UNITED STATES DISTRICT JUDGE 2

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