United States District Court, W.D. Virginia, Roanoke Division.
ELISTON F. GEORGE, Petitioner,
HAROLD W. CLARKE, Respondent.
Eliston F. George, Pro Se Petitioner.
JAMES P. JONES, District Judge.
The petitioner, an inmate proceeding pro se, brings this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. The petitioner asserts that, based on falsified evidence, he was wrongly convicted in 1978 in the District Court of the Virgin Islands, a local or territorial court, now named Superior Court, on charges of first-degree murder and possession of a deadly weapon and sentenced to life in prison. After review of the record, I must summarily dismiss the defendant's petition without prejudice.
A district court may not entertain a § 2241 petition attempting to invalidate a sentence or conviction unless a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255 in the sentencing court is "inadequate or ineffective to test the legality of [an inmate's] detention." Swain v. Pressley, 430 U.S. 372, 381 (1977) (internal quotation marks and citation omitted). A procedural impediment to § 2255 relief, such as the statute of limitations or the rule against successive petitions, does not render § 2255 review "inadequate" or "ineffective." See In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997).
The United States Court of Appeals for the Fourth Circuit has found that § 2255 is inadequate and ineffective when the inmate satisfies a three-part standard by showing that:
(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).
George's petition does not specify any recent change of substantive law making it no longer criminal conduct to use a deadly weapon to murder someone, and I am not aware of any such precedent or statutory amendment. Thus, George fails to meet a critical element of the In re Jones standard as required to show that § 2255 is inadequate or ineffective to test the legality of his conviction,  and his challenge to his conviction cannot be addressed under § 2241 accordingly.
Because George's claim is not appropriately raised under § 2241, I will ...