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Richard v. Fox

United States District Court, W.D. Oklahoma

March 26, 2018

KYLE RICHARD, Petitioner,
JOHN B. FOX, Warden, Respondent.



         Petitioner 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.


         In 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.”).

         In his § 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).

         Petitioner 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. § 2255(e)).


         The 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.”[1] 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 thereto.”).


         I. The 28 U.S.C. § 2255(e) Savings Clause

         A 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. § 2255(a). However,

[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).

         If “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 ...

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