United States District Court, District of Columbia
BENJAMIN P. FOREMAN, Petitioner,
HARLEY G. LAPPIN, DIRECTOR, Respondent.
S. CHUTKAN, United States District Judge.
matter is before the Court on review of Petitioner's
pro se pleading (“Pet.”) titled
“CONSTITUTIONAL GREAT WRIT OF HABEAS CORPUS PURSUANT TO
THE UNITED STATES CONSTITUTION, ART. 1, § 9, CL.
2.” Petitioner is a federal prisoner serving a
300-month prison term imposed by the United States District
Court for the Western District of Michigan on September 7,
2006, on his conviction of possession with intent to
distribute cocaine and cocaine base and possession of a
firearm in furtherance of drug trafficking. Pet. at 4. This
is an enhanced sentence: based on Petitioner's prior
criminal history, he is deemed a career offender who is
subject to a longer sentence than otherwise would have been
imposed under the United States Sentencing Guidelines.
See id. at 3, 6; see Mem. of Law in Support
of Issuance of Constitutional Writ of Habeas Corpus
(“Pet. Mem.”) at 14-16 (asserting that his
“25-year sentence would have been 89-120 months
lesser” had he not been designated a career offender).
offenses on which the enhanced sentence is based are
“Assault With Intent to do Great Bodily Harm Less Than
Murder” and “Delivery/Manufacture Cocaine Less
Than 50 Grams.” Pet., Ex. L at 9, 11. Petitioner
contends that he is actually innocent of the latter offense
because the Michigan court “dismissed the Delivery
conviction.” Pet. at 3; see id. at 6.
Petitioner argues, “there exist[s] no factual basis for
[the] Career Offender enhancement, ” id. at 6,
such that his federal sentence is invalid and his current
custody is unlawful, see id. at 3-4, 8. He demands
his immediate release from custody or, alternatively, an
evidentiary hearing. Id. at 9.
there were a remedy available to Petitioner, it would be by
motion under 28 U.S.C. § 2255 addressed to the
sentencing court. See Ojo v. Immigration &
Naturalization Serv., 106 F.3d 680, 683 (5th Cir. 1997)
(explaining that the sentencing court is the only court with
jurisdiction to hear a defendant's complaint regarding
errors occurring before or during sentencing); Day v.
Obama, No. 1:15-CV-00671, 2015 WL 2122289, at *2 (D.D.C.
May 1, 2015) (concluding that petitioner sentenced by the
Eastern District of Virginia cannot pursue collateral attack
on his sentence in the District of Columbia), aff'd
sub nom. Day v. Trump, __ F.3d __, __, 2017 WL 2697981,
at *4 (D.C. Cir. June 23, 2017).
2255 provides that:
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added). A federal district
court may not entertain “[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 . . . 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 ” Id. § 2255(e)
(emphasis added). Once a § 2255 motion has been
adjudicated, any subsequent motion must be presented to the
appropriate court of appeals for permission to proceed in the
sentencing court. 28 U.S.C. § 2244(b)(3)(A).
certainly was aware of the process by which to attack his
federal conviction and sentence. See Pet. Mem. at
4-6. He already has sought, and has been denied, relief under
§ 2255, and the United States Court of Appeals for the
Sixth Circuit has not authorized the Western District of
Michigan to entertain a successive § 2255
motion. “The § 2255 remedy is not
inadequate or ineffective simply because § 2255 relief
has already been denied, or because the [petitioner] has been
denied permission to file a second or successive § 2255
motion.” Neal v. Gonzales, 258 F. App'x
339, 340 (D.C. Cir. 2007) (per curiam) (citing Charles v.
Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (collecting
has stated no claim for relief in this court, and his
petition for a writ of habeas corpus will be dismissed. A
separate order accompanies this Memorandum Opinion.
 Petitioner has filed assorted
post-conviction actions, none successful, to challenge his
conviction and sentence:
His journey began when he pleaded guilty in the
Western District of Michigan to possession with intent to
distribute cocaine base, possession with intent to distribute
cocaine, and possessing a firearm in furtherance of a drug
trafficking crime under a plea agreement. He was sentenced to
concurrent prison terms totaling 240 months on the drug
convictions and a consecutive term of 60 months for the
firearm offense. His appeal to the Sixth Circuit was
dismissed because his plea agreement contained a waiver of
his appeal rights. United States v. Foreman, No.
06-2192 (6th Cir. Sept. 6, 2007).
In 2008, the petitioner filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255, and that motion was denied by the district court.
Foreman v. United States, No. 08-01115 (W.D. Mich.
July 19, 2010). The Sixth Circuit denied a certificate of
appealability. F ...