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Johnson v. Cheatham

United States District Court, E.D. Virginia, Richmond Division

July 9, 2015

WAYNE C. JOHNSON, Petitioner,
v.
R.C. CHEATHAM, Respondent.

MEMORANDUM OPINION (ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION)

HENRY E. HUDSON, District Judge.

Wayne C. Johnson, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241[1] petition ("§ 2241 Petition, ECF No. 1).[2] On April 6, 2015, the Magistrate Judge issued a Report and Recommendation recommending that the Court dismiss the § 2241 Petition for want of jurisdiction as Johnson failed to demonstrate that the relevant precedent permitted him to pursue a § 2241 petition to challenge his sentence. Johnson filed objections. For the reasons that follow the Report and Recommendation will be accepted and adopted.

I. REPORT AND RECOMMENDATION

The Magistrate Judge made the following findings and recommendations:

A. Procedural History and Summary of Johnson's Claim
In the United States District Court for the Eastern District of Virginia,
Wayne C. Johnson was indicted and charged with multiple drug offenses on April 9, 1999. Thereafter, Johnson pled guilty to possession with the intent to distribute five (5) kilograms or more of cocaine. The Honorable Richard L. Williams, United States District Judge, sentenced Johnson to a 292-month term of imprisonment. Thereafter, Johnson filed a § 2255 motion challenging his conviction and sentence. On October 7, 2002, the § 2255 motion was denied.
Johnson v. Flannery, No. 3:02CV294, 2002 WL 32366015, at *1 (E.D. Va. Oct. 18, 2002).
In his § 2241 Petition, Johnson contends that his sentence is unconstitutional in light of the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).[3] (§ 2241 Pet. 3.) For the reasons set forth below, it is RECOMMENDED that the action be DISMISSED FOR WANT OF JURISDICTION.
B. 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 such a motion 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)). 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).[4] "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] ...

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