United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
a federal prisoner appearing pro se, has brought this action
pursuant to 28 U.S.C. § 2241 challenging his
sentence's legality. United States Chief District Judge
Vicki Miles-LaGrange referred this matter to the undersigned
Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B) and (C). The undersigned has
examined the pleading and recommends the action be dismissed
for lack of jurisdiction.
was convicted and sentenced in the United States District
Court for the Northern District of Texas Fort Worth Division,
Case No. 04-cr-00316. Doc. 1, at 1. He appealed and the Fifth
Circuit Court of Appeals vacated and remanded for
resentencing. Id. at 2. On second appeal, the Fifth
Circuit affirmed his sentence. Id. at 3. Petitioner
then filed a motion under 28 U.S.C. § 2255 in the
Northern District of Texas arguing ineffective assistance of
counsel in various respects. Id. at 4. The district
court denied Petitioner's motion. Id.
currently housed at FCI El Reno in this district, now seeks
relief in this Court under 28 U.S.C. § 2241, arguing
that “[i]n light of Nelson v. Colorado, 137
S.Ct. 1249 (2017), [Petitioner is] actually innocent of all
sentencing enhancements that [he] did not stipulate to and
were the result of uncharged conduct.” Id. at
2. Petitioner challenges “‘all' relevant
conduct attributed to [him], which also formed the basis of
70% of [his] sentence.” Id. Petitioner
explains he filed his action under 28 U.S.C. § 2241
because § 2255 proves inadequate or ineffective to
challenge his sentence:
Nelson v. Colorado hadn't been decided, and
United States v. Watts, 519 U.S. 148 (1997) was
precedent, so I could not contend that I was actually
innocent of the relevant conduct. Moreover, Alleyne v.
United States clarified that irrespective of
characterization, if a factor has bearing on the floor or
ceiling of one's sentence, it's an element that must
be proven beyond a reasonable doubt. Both of these decisions
were subsequent to my 2255 filing.
Id. at 5. Petitioner requests the Court
“acknowledge that [he is] actually innocent of all
relevant conduct that was attributed to [him], and that [he]
was never charged with.” Id. at 8. Petitioner
“want[s] only to be sentenced for [his] stipulation as
to the indictment.” Id. Petitioner also asks
the Court “to affirm that Due Process is violated when
a judge is allowed to do an end-run around the Constitution
at sentencing by mischaracterizing elements of the
threshold question is whether Petitioner's pleading is
properly filed under § 2241. The undersigned finds it is
federal prisoner's attempt to attack the legality of his
conviction or sentence generally must be brought under §
2255, and in the district court that convicted and sentenced
him. . . .” Prost v. Anderson, 636 F.3d 578,
581 (10th Cir. 2011). A federal prisoner “generally is
entitled to only one adequate and effective opportunity to
test the legality of his detention, in his initial §
2255 motion.” Id. at 586 (emphasis omitted).
If that challenge fails, as Petitioner's did, then the
prisoner cannot file a “second or successive”
§ 2255 motion in the district court unless “a
panel of the appropriate court of appeals” certifies
that the motion contains: (1) newly discovered evidence that,
if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h) (citing 28 U.S.C. § 2244).
District courts typically “do not even have
jurisdiction to deny the relief sought” in a
prisoner's subsequent collateral attack on his federal
conviction or sentence. United States v. Nelson, 465
F.3d 1145, 1148 (10th Cir. 2006); see also Abernathy v.
Wandes, 713 F.3d 538, 557 (10th Cir. 2013) (citing 28
U.S.C. § 2255(e)).
purposes of an application for a writ of habeas corpus
pursuant to § 2241 and a motion pursuant to § 2255
are distinct and well established. “A petition under 28
U.S.C. § 2241 attacks the execution of a sentence rather
than its validity” and “[a] 28 U.S.C. § 2255
petition attacks the legality of detention.”
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). A habeas corpus petition pursuant to § 2241
“is not an additional, alternative, or supplemental
remedy, to the relief afforded by motion in the sentencing
court under § 2255.” Williams v. United
States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam).
Instead, “[t]he exclusive remedy for testing the
validity of a judgment and sentence . . . is that provided
for in 28 U.S.C. § 2255.” Johnson v.
Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see
28 U.S.C. § 2255(e).
has created one exception for prisoners to file a § 2241
petition rather than a § 2255 petition under the savings
clause of § 2255(e): “a federal prisoner may
resort to § 2241 to contest his conviction if but only
if the § 2255 remedial mechanism is ‘inadequate or
ineffective to test the legality of his
detention.'” Prost, 636 F.3d at 580
(quoting 28 U.S.C. § 2255(e)). The circumstances under
which the savings clause might apply are “extremely
limited, ” and it is the prisoner's burden to show
that the remedy provided by § 2255 is inadequate or
ineffective. Id. at 584 (internal quotations
We determine whether the § 2255 remedy was
“inadequate or ineffective” by asking
“whether a petitioner's argument challenging the
legality of his detention could have been tested in an
initial § 2255 motion. If the answer is yes, then the
petitioner may not resort to the savings clause and §
2241.” Prost, 636 F.3d at 584. This is true
even if the argument would likely have failed under existing
circuit precedent or had already been raised and rejected on
direct appeal; the question is whether the argument could
have been raised, not whether it would have succeeded.
See id.; see also Abernathy v. Wandes, 713
F.3d 538, 551 (10th Cir. 2013). The habeas applicant has the
burden to show that he satisfies § 2255(e)'s saving
clause. Hale v. Fox, 829 F.3d 1162, 1170 (10th Cir.
2016), cert. denied sub nom. Hale v. Julian, 137
S.Ct. 641 (2017). “[W]hen a federal petitioner fails ...