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Ross v. Sepanek

United States District Court, Sixth Circuit

July 8, 2013

WENDELL ROSS, Petitioner,
MICHAEL SEPANEK, Warden, Respondent.


HENRY R. WILHOIT, Jr., District Judge.

Wendell Ross is an inmate confined in the Federal Correctional Institution ("FCI") in Ashland, Kentucky. Proceeding without an attorney, Ross has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal conviction and sentence. [R. 1] Ross has paid the $5.00 filing fee.

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)).

The Court evaluates Ross's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Ross's factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Having reviewed the petition, the Court must deny it because Ross can not pursue his claims in a habeas corpus proceeding under § 2241.


On August 4, 2004, Ross was charged in a three-count indictment in the United States District Court for the Southern District of Ohio and charged with possession of a firearm by a convicted felon, possession with intent to distribute marijuana, and carrying a firearm during and in relation to a drug trafficking crime. United States v. Wendell Ross, No. 1:04-cr-0099-SJD (S.D. Ohio 2004). Ross proceeded to trial in 2006 and was convicted on all three counts of the indictment. [ Id., at R. 80 therein]

Prior to Ross's trial, pursuant to 21 U.S.C. § 851, the United States filed an Information To Establish Prior Conviction [ Id., at R. 71 therein], advising that in 1996, Ross was convicted on drug trafficking charges in state court in Ohio;[1] therefore, he was liable for imposition of an enhanced sentence pursuant to 21 U.S.C. § 841(D).

On July 19, 2006, Ross was sentenced under the career offender[2] sentencing guidelines, viz., USSG § 4B1.1(c)(3), and received a 120-month sentence of imprisonment on each of Counts 1 and 2, to run concurrently, and a 120-month sentence on Count 3, to run consecutively to the sentences on Counts 1 and 2, for a total sentence of 240 months. [ Id., at R. 99 therein]

Ross appealed, but on November 12, 2008, the Sixth Circuit affirmed his conviction and sentence. United States v. Wendell Ross, No. 06-4106 (6th Cir. 2008). Ross then filed a petition for a writ of certiorari in the United States Supreme Court (Case No. 09-5341). However, on October 5, 2009, the Supreme Court denied his petition. Ross v. United States, 558 U.S. 899, 130 S.Ct. 250 (2009).

Thereafter, on September 22, 2010, Ross filed a motion in the trial court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct sentence. [ Id., at R. 120 therein] On March 10, 2011, the trial court denied Ross's § 2255 motion. [ Id., at R. 134 therein] Ross appealed, but on October 6, 2011, the Sixth Circuit Court of Appeals found that he had not made a substantial showing of the denial of a constitutional right and denied Ross a certificate of appealability. [ Id., at R. 141] On July 23, 2012, Ross then filed a second § 2255 motion in the trial court [ Id., at R. 142], which was denied on August 24, 2012. [ Id., at R. 145]


Ross contends that he is entitled to resentencing in light of the Supreme Court's decisions in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687 (2009) and Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010). Ross acknowledges that his remedy to obtain resentencing would ordinarily be under 28 U.S.C. § 2255, but that in his case, that remedy is inadequate and ineffective; therefore, he submits that he is entitled to proceed with this claim for resentencing in his § 2241 petition under the savings clause of 28 U.S.C. § 2255(e).

In Chambers v. United States, supra , the Supreme Court held that felony escape convictions based on the a defendant's failure to report were not violent felonies under the Armed Career Criminal Act (ACCA). Subsequently, in Carachuri-Rosendo, the Supreme Court held that a defendant who has been convicted in state court for a subsequent simple drug possession offense, which was not enhanced based on the fact of a prior conviction, had not been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43); therefore, the Attorney General had the discretion to cancel defendant's removal proceedings. Id., 130 S.Ct. at 2589.

Ross argues that based on the Supreme Court's holdings in Chambers and Carachuri-Rosendo, [3] he is "actually innocent" of being a career offender, that the sentencing court improperly enhanced his sentence as a career offender, and that these two cases apply retroactively to his claim. Ross further argues that his 1998 conviction in Ohio for attempted escape cannot be deemed a crime of violence for purposes of the statutory or guideline enhancements. For these reasons, Ross requests that ...

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