United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B.GOODWIN, UNITED STATES MAGISTRATE JUDGE
Kyle Richard, while incarcerated at the Federal Transfer
Center in Oklahoma City, Oklahoma, filed pro se a pleading
seeking a writ of habeas corpus under 28 U.S.C. § 2241.
See Pet. (Doc. No. 1). The matter has been referred
to the undersigned magistrate judge for initial proceedings
consistent with 28 U.S.C. § 636(b). For the reasons
detailed below, the undersigned recommends that the Petition
be dismissed without prejudice for lack of jurisdiction.
August 2014, Petitioner was convicted of armed bank robbery
(Count 1) and possession of a firearm during a crime of
violence (Count 2). United States v. Richard, No.
CR-14-1-M (W.D. Okla. filed Aug. 20, 2014) (J. &
Sentence). Petitioner was sentenced to a 12-month term of
imprisonment for Count 1 and a 60-month term of imprisonment
for Count 2, to run consecutively. See Id. at 2.
Petitioner did not directly appeal the conviction. Nor is
there any indication that Petitioner has previously filed a
habeas petition challenging this conviction or sentence under
either 28 U.S.C. §§ 2241 or 2255. See Pet.
at 2 (“[P]etitioner could not have brought this claim
on an original § 2255 petition.”).
§ 2241 Petition now before this Court, Petitioner seeks
a reduction of his sentence under Count 1 to a term of one
day, in light of the U.S. Supreme Court's recent decision
in Dean v. United States, 137 S.Ct. 1170 (2017).
See Pet. at 2-3. In Dean, the Supreme Court
addressed the language of 18 U.S.C. § 924(c), which sets
mandatory minimum sentences for the use or possession of a
firearm in connection with a crime of violence and directs
sentencing courts to impose this mandatory minimum in
addition to, and consecutively to, the sentence for the
predicate crime. The Supreme Court held that nothing in the
statute prevents the sentencing court from considering a
lengthy mandatory minimum sentence when calculating a just
sentence for predicate offenses and minimizing the sentence
for predicate offenses accordingly. See Dean, 137
S.Ct at 1178; see 18 U.S.C. § 924(c).
asserts that his Petition is authorized under 28 U.S.C.
§ 2241 because a motion under 28 U.S.C. § 2255
would be inadequate or ineffective to test the legality of
his sentence. See Pet. at 1-2 (citing 28 U.S.C.
Court is required to review habeas petitions promptly and to
“summarily dismiss [a] petition without ordering a
responsive pleading, ” Mayle v. Felix, 545
U.S. 644, 656 (2005), “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district
court.” R. 4, R. Governing § 2254 Cases in
U.S. Dist. Cts.; accord 28 U.S.C. § 2243
(“A court . . . entertaining an application for a writ
of habeas corpus shall forthwith award the writ or issue an
order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled
The 28 U.S.C. § 2255(e) Savings Clause
petition for a writ of habeas corpus brought under 28 U.S.C.
§ 2241 generally seeks to challenge the execution of a
sentence, as opposed to its validity, and is filed in the
district of the petitioner's confinement. Brace v.
United States, 634 F.3d 1167, 1169 (10th Cir. 2011). By
contrast, to challenge the validity of a federal conviction
or sentence-i.e., to challenge the legality of one's
federal detention-the petitioner typically must file a motion
under 28 U.S.C. § 2255 in the district that imposed the
sentence. Id.; see 28 U.S.C. §
[a] federal prisoner may file a § 2241 petition to
challenge the legality of his conviction under the limited
circumstances provided in the so-called “savings
clause” of § 2255. Pursuant to this savings
clause, a § 2241 petition may be appropriate if
“the remedy by [§ 2255] motion is inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). However, § 2255 will rarely be an
inadequate or ineffective remedy to challenge a conviction.
Brace, 634 F.3d at 1169 (alteration in original)
(citation omitted). It is the prisoner's burden to
establish that his circumstances are within the
“extremely limited” confines of the savings
clause and not an attempt to circumvent the statutory
limitations of § 2255. See Prost v. Anderson,
636 F.3d 578, 584, 586 (10th Cir. 2011) (internal quotation
marks omitted); 28 U.S.C. § 2255(e), (f), (h).
“a petitioner's argument challenging the legality
of his detention could have been tested in an initial §
2255 motion” “then the petitioner may not resort
to the savings clause and § 2241.” Prost,
636 F.3d at 584. “[T]he [savings] clause is concerned
with process- ensuring the petitioner an opportunity
to bring his argument-not with substance- guaranteeing
nothing about what the opportunity promised will
ultimately yield in terms of relief.” Id.
“The ultimate result may be right or wrong as a matter
of substantive law, but the savings clause is satisfied so
long as the petitioner had an opportunity to bring and test
his claim.” Id. at 585. The Tenth Circuit has
“long and repeatedly said that a petitioner's
failure to obtain relief under § 2255 does not establish
that the remedy so provided is either inadequate or