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Shed v. Greilick

United States District Court, W.D. Oklahoma

June 1, 2018

KEVIN SHED, Petitioner,
v.
WARDEN GREILICK, Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         I. Background.

         Petitioner 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.[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.

         Petitioner, 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 offense.” Id.

         II. Analysis.

         The threshold question is whether Petitioner's pleading is properly filed under § 2241. The undersigned finds it is not.

         “[A] 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)).

         The 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).

         Congress 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 omitted).

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 ...

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