The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Pending before the Court is Petitioner Jimmy Ortiz's petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2241. He challenges a judgment of sentence imposed by the U.S. District Court for the Northern District of Ohio on August 14, 2007.
For the reasons set forth below, the Court must dismiss the petition for lack of subject matter jurisdiction.
On August 14, 2007, after a guilty plea, Ortiz was sentenced in the U.S. District Court for the Northern District of Ohio to a total of 168 months of imprisonment and 8 years of supervised release for Conspiracy to Possess with the Intent to Distribute Heroin (Count 1), in violation of 21 U.S.C. §§ 851, 846, 841(a)(1) and (b)(1)(B); Distribution of Heroin (Count 3), in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B); Conspiracy to Possess with the Intent to Distribute Heroin (Count 4), in violation of 21 U.S.C. §§ 851, 846, 841(a)(1) and (b)(1)(B); and, Illegal Re-Entry (Count 7), in violation of 8 U.S.C. § 1326(b)(2). He subsequently filed an appeal with the Court of Appeals for the Sixth Circuit challenging his sentencing as a career offender, which the court denied as untimely on December 12, 2007.
On February 5, 2009, Ortiz filed with the District Court for the Northern District of Ohio a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. In that motion, he asserted the same grounds for relief that he asserts here: that he is actually and factually innocent of violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) as charged and convicted in Counts 1 and 4 of the indictment, and that he is also actually and factually innocent of the sentencing enhancement that he received under § 2L1.2(1)(B) of the United States Sentencing Guidelines ("U.S.S.G."). (See § 2255 Motion and Brief, Resp's Ex. 5, ECF No. 10-1 at 24-34).
In a Memorandum of Opinion dated February 24, 2009, the district court denied Ortiz's § 2255 motion. (Ortiz v. United States, Nos. 1:09-CV-241, 1:06-CR-417, slip op. (N.D.Oh. Feb. 24, 2009), Resp's Ex. 6, ECF No. 10-1 at 35-46). It determined that the motion was untimely under the applicable statute of limitations, 28 U.S.C. § 2255(f). (Id. at 3-4, Resp's Ex. 6, ECF No. 10-1 at 38-39). It further determined that the grounds raised by Ortiz in his motion were foreclosed by his guilty plea, and by the knowing and voluntary waiver of post-conviction rights in his plea agreement. (Id. at 8-11, Resp's Ex. 6, 10-1 at 43-46). The court also held:
It appears Ortiz is attempting to circumvent the statutory time bar to filing a § 2255 motion by couching his motion as one brought under the "savings clause," and repeatedly referring to the terms "actual and factual innocence" and "§ 2255(e)." These are buzz words for a habeas petition under 28 U.S.C. § 2241.
Generally speaking, § 2255 is the primary avenue for relief for federal prisoners protesting the legality of their conviction or sentence, while § 2241 is the avenue for claims challenging the execution or manner in which the sentence is served. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). A federal prisoner may, however, challenge the legality of his conviction or sentence under § 2241 if he can show that § 2255 is "inadequate or ineffective to test the legality of his detention." Id. (citing 28 U.S.C. § 2255(e)). A prisoner's remedy under § 2255 remedy is not considered inadequate or ineffective merely because the motion is time barred, relief under § 2255 has already been denied, or the prisoner has been denied permission to file a second or successive § 2255 motion. Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999) (per curiam). Thus, the fact that Ortiz' § 2255 motion is time barred does not provide a basis for him to seek relief under the savings clause, or § 2255(e).
Nor can Ortiz avail himself of the savings clause by claiming "actual and factual innocence." The Sixth Circuit has thus far held that only a prisoner who can show that an intervening change in the law establishes his actual innocence can invoke the savings clause and proceed under § 2241. Id.; Joiner v. U.S., No. 1:07 CV 1706, 2007 WL 2688177 at *2 n.3 (N.D. Ohio Sep. 10, 2007) (citing Lott v. Davis, No. 08-6172, 2004 WL 1447645, at *2 (6th Cir. Jun. 18, 2004) ("it appears that a prisoner must show an intervening change in the law that establishes his actual innocence in order to obtain the benefit of the savings clause")). Actual innocence means factual innocence, not legal insufficiency. Martin v. Perez, 391 F.3d 799, 802-3 (6th Cir. 2004) (citation omitted).
Ortiz claims that he is "actually and factually innocent" of Counts 1 and 4 because the Government did not meet its burden of proving to a jury beyond a reasonable doubt that he conspired to distribute or possessed with the intent to distribute 100 grams or more of heroin, which is an element of the offense. In other words, Ortiz argues that his conviction and/or sentence for those Counts violates Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the United States Supreme Court held that all facts, other than prior convictions, which increase the maximum sentence must either be admitted by the defendant or found by a jury. Because Ortiz pled guilty to possessing with intent to distribute 100 grams or more of heroin in Count 4, admitted the drug quantity in the plea agreement, and verbally admitted the drug quantity during the change of plea hearing, Apprendi does not apply. Additionally, since Apprendi was decided before Ortiz's conviction became final, it would not qualify as an intervening change in the law that establishes his actual innocence. Chandler, 180 F.3d at 755.
With respect to Count 7, Ortiz claims that he is "Actually and Factually Innocent of the 12 Level Enhancement under § 2L1.2(1)(B) due to [the Court's] Mandatory use of the Guidelines to Enhance his Base Level" in violation of United States v. Booker, 543 U.S. 220 (2005). Motion, at 8. He claims that "[t]he record shows that the district court imposed [the sentence] based on the assumption that the enhancement of 12 levels were mandatory." Id.
Ortiz is correct that the Sentencing Guidelines are no longer mandatory under Booker. However, his argument still fails. In crafting a sentence after Booker, the district court is first supposed to calculate the applicable advisory guidelines range, then take into account the sentencing purposes and factors articulated in 18 U.S.C. §§ 3553(a) and (b). U.S. v. Deveaux, ...