United States District Court, E.D. Virginia
TORRY T. LEWIS, Petitioner,
UNITED STATES OF AMERICA, et al., Respondents.
MEMORANDUM OPINION (DISMISSING 28 U.S.C. § 2241 FOR WANT OF JURISDICTION)
HENRY E. HUDSON, District Judge.
Torry T. Lewis, a federal inmate proceeding pro se, submitted a 28 U.S.C. §2241 petition ("2241 Petition, " ECF No. 5). Lewis has paid the filing fee and has returned the standardized forms for filing a 28 U.S.C. § 2241 petition. Accordingly, the action will be filed. This Court convicted Lewis of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and sentenced Lewis to 288 months of imprisonment. In his § 2241 Petition, Lewis challenges the sentence imposed by this Court. Lewis raises the following claim:
Claim One: Lewis "was misclassified as a career offender..." (§ 2241 Pet. 7-8) because he only had one consolidated New Jersey state felony sentence not two ( see Mem. Supp. §2241 Pet. 5-7, ECF No. 2).
For the reasons stated 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, 113 (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 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 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 Lewis's 28 U.S.C. § 2241 Petition
Lewis fails to satisfy the second prong of In re Jones. See id. at 334. Specifically, Lewis 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 of which Lewis stands convicted, conspiring to distribute and possess with intent to distribute cocaine base, remains a crime. Moreover, "Fourth Circuit precedent has... not extended the reach of the savings clause to those petitioners challenging only their sentence." Poole, 531 F.3d at 267 n.7 (citing In re Jones, 226 F.3d at 333-34); Darden v. Stephens, 426 F.App'x 173, 174 (4th Cir. 2011) ...