United States District Court, E.D. Virginia, Richmond Division
JEFFREY B. JOHNSON, Petitioner,
ERIC D. WILSON, Respondent.
ROBERT E. PAYNE, Senior District Judge.
Jeffrey B. Johnson, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 petition. (ECF No. 1.) The matter is before the Court for preliminary review. See Rule 4, Rules Governing § 2254 Cases in the U.S. District Courts ("Rules Governing § 2254 Cases") ("If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.").
In his § 2241 Petition, Johnson challenges his convictions and sentence imposed by the United States District Court for the Western District of Virginia ("Sentencing Court"). Johnson requests relief based on the Supreme Court's recent decision in DePierre v United States , 131 S.Ct. 2225 (2011). Specifically, Johnson summarizes his argument as follows:
Petitioner Johnson's indictment is unconstitutionally defective for failing to specify that, the offense involved at least 50 grams or more of a quantity of a mixture or substance described in § 841(b)(1)(A)(iii), violating his due process rights; and the government's failure to prove that Johnson was involved with at least 50 grams or more of a quantity of a mixture or substance described in § 841 (b)(1)(A)(iii) to the jury at trial resulted in insufficient evidence to support the conviction.
The outcome in this criminal case amounts to a miscarriage of justice, because it implicates the fundamental fairness and accuracy of the conviction. And compels that Johnson was convicted for a nonexistent offense. That is, Johnson was convicted of a crime for which he was neither charged nor tried. As relevant here, no case law prior to De[P] ierre v. United States, ___ U.S. ___ , 180 L.Ed.2d 114 (2011); and United States v. O'Brien, [560 U.S. 218] (2010), allowed vacature of the conviction. Accordingly, Petitioner Johnson may file a habeas petition under 28 U.S.C. § 2241.
(Mem. Supp. § 2241 Pet. 28 (spacing corrected).) As explained below, under certain circumstances an inmate can challenge his or her conviction pursuant to 28 U.S.C. § 2241. Nevertheless, Johnson fails to demonstrate that he can satisfy the controlling "inadequate and ineffective" test in the United States Court of Appeals for the Fourth Circuit to utilize 28 U.S.C. § 2241 to challenge his conviction.
Additionally, Johnson has filed a Supplemental Pleading (ECF No. 9) contending that the Court incorrectly calculated his sentence. (Pet'r's Supp. Pleading 5 (as paginated by the Court's CM/ECF docketing system), ECF No. 9.) The relevant precedent from the Fourth Circuit, however, precludes an inmate from utilizing 28 U.S.C. § 2241 to challenge the propriety of a sentencing enhancement under the United States Sentencing Guidelines. Accordingly, as explained below, the action 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. Det. Ctr. , 911 F.2d 1111, 1113 (5th Cir. 1990)). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricted the jurisdiction of the district courts to hear second or successive applications for federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a "gatekeeping' mechanism." Felker v. Turpin , 518 U.S. 651, 657 (1996). Specifically, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
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 . (internal 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 ...