United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (Dismissing 28 U.S.C. § 2241 Petition for Want of Jurisdiction)
HENRY E. HUDSON, District Judge.
Lorenza Porter, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 petition. This Court convicted Porter of conspiracy to possess with the intent to distribute and to distribute cocaine, cocaine base, and heroin; possession with the intent to distribute heroin; distribution of cocaine base and heroin; money laundering; investment of illicit drug profits; and tax evasion. See United States v. Porter, No. 96-4447, 1997 WL 269343, at *1 (4th Cir. May 22, 1997) (citation omitted). The Court sentenced Porter to 262 months of imprisonment. Id. On April 28, 2000, the Court denied a 28 U.S.C. § 2255 filed by Porter. In his § 2241 Petition, Porter contends that his sentence is unconstitutional in light of the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). For reasons set forth below, the § 2241 Petition will be DISMISSED for want of jurisdiction.
A. Motions under 28 U.S.C. § 2255 Compared to Petitions under 28 U.S.C. § 2241
A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack on the imposition of a federal conviction and sentence and must be filed with the sentencing court. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, Fed. Del Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)). A federal inmate may not proceed under 28 U.S.C. § 2241 unless he or she demonstrates that the remedy afforded by 28 U.S.C. § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). For example, "attacks on the execution of a sentence are properly raised in a § 2241 petition." In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)(citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Hanahan v. Luther, 693 F.2d 629, 632 n.1 (7th Cir. 1982)). Nevertheless, the United States Court of Appeals for the Fourth Circuit has emphasized that "the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision or because an individual is procedurally barred from filing a § 2255 motion." Id. (citations omitted).
The Fourth Circuit has stressed that an inmate may proceed under § 2241 to challenge his conviction "in only very limited circumstances." United States v. Poole, 531 F.3d 263, 269 (4th Cir. 2008) (citation omitted) (internal quotation marks omitted). The "controlling test, " id, in the Fourth Circuit is as follows:
[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal, and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added). The Fourth Circuit formulated this test to provide a remedy for the "fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his [or her] own, [he or she] has no source of redress." Id. at 333 n.3 (emphasis added).
B. Analysis of Porter's 28 U.S.C. § 2241 Petition
Porter fails to satisfy the second prong of In re Jones. See id. at 334. Specifically, Porter fails to demonstrate that "subsequent to [his] direct appeal and [his] first § 2255 motion, the substantive law changed such that the conduct of which [he] was convicted is deemed not to be criminal. " Id. (emphasis added). The conduct ofwhich Porter stands convicted remains criminal. See Alsop v. Chandler, ___ F.Appx. ___, No. 13-10778, 2014 WL 68913, at *1 (5th Cir. Jan. 9, 2014) (concluding the decision in Alleyne fails to ...