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.
Abdul-Aziz Rashid Muhammad, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 petition. In 1990, the U.S. District Court for the Eastern District of Kentucky ("Sentencing Court") convicted Muhammad of conspiracy to commit armed bank robbery, aiding and abetting armed bank robbery, use of a firearm in commission of a felony, and possession of a firearm by a convicted felon. See United States v. Muhammad, 948 F.2d 1449, 1452 (6th Cir. 1991). The Sentencing Court sentenced Muhammad to 327 months of imprisonment followed by a mandatory twenty-year consecutive sentence for his 18 U.S.C. 924(c) use of a firearm conviction. Id.  Thereafter, Muhammad began to file numerous post-conviction challenges to his conviction and sentence. See Muhammad v. Purdue, No. 5:12CV129, 2013 WL 4508870, at *6 (N.D. W.Va. Aug. 23, 2013) (outlining Muhammad's prior challenges in various federal courts); (§ 2241 Pet. 6-13). "The petitioner's September 12, 2011 filing with the Eastern District of Kentucky was the first time that petitioner raised the... arguments... that his 1990 consecutive sentence was improperly based upon his 1974 § 924(c), which he claims that he only discovered had been vacated on August 2, 2011." Muhammad, 2013 WL 4508870, at *1.
In his newest § 2241 Petition, Muhammad contends, like in his prior petitions, that he is "actually innocent" of the 1990 § 924(c) conviction and improperly sentenced to a consecutive twenty-year mandatory sentence and that his consecutive sentence is unconstitutional in light of the Supreme Court's decision in 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 ofa 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 Muhammad's 28 U.S.C. § 2241 Petition
Muhammad fails to satisfy the second prong of In re Jones. See id. at 334. Specifically, Muhammad 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 1990 conduct of which Muhammad stands convicted, use of a firearm in the commission of a felony, inter alia, 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 provide a basis for filing a § 2241 petition); Muhammad, 2013 WL 4508870, at *3 (concluding same, and that Muhammad is not "actually innocent, " and failed to satisfy In re Jones for nearly identical claim). Because Muhammad essentially challenges only the validity of his twenty-year sentence imposed in 1990 and not the ...