United States District Court, W.D. Virginia, Roanoke Division
NORMAN K. MOON UNITED STATES DISTRICT JUDGE.
Petitioner Rodger Lee Moran, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Moran claims that he is actually innocent of the 21 U.S.C. § 851 enhancement applied to his sentence. Specifically, Moran argues that his prior convictions that were used to establish his career offender status during sentence calculations were not found beyond a reasonable doubt by the jury. Upon review of the petition, I conclude that Moran fails to demonstrate that he is entitled to relief under § 2241 and, therefore, I will grant respondent’s motion to dismiss the petition.
Ordinarily, a motion pursuant to 28 U.S.C. § 2255, and not a petition pursuant to 28 U.S.C. § 2241, is the appropriate vehicle for challenging a conviction or the imposition of a sentence, unless a motion pursuant to § 2255 is “inadequate and ineffective” for those purposes. In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); see also United States v. Little, 392 F.3d 671 (4th Cir. 2004) (“[An] attack on the execution of [a] sentence and not a collateral attack on [a] conviction . . . [is] properly brought under 28 U.S.C.A. § 2241.”). A motion pursuant to § 2255 is “inadequate and ineffective” to challenge the imposition of a sentence only when (1) settled law established the legality of the conviction or sentence at the time imposed; (2) after the prisoner has completed his appeal and first § 2255 motion, a change in substantive law renders the conduct for which the prisoner was convicted no longer criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law made retroactively applicable to cases on collateral review. Id.
Moran’s petition does not indicate any respect in which his case meets the standard under In re Jones to proceed under § 2241. Specifically, the second element of the test requires that “substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal.” This statement has not been extended to include sentencing calculations made pursuant to the United States Sentencing Guidelines. See United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010) (holding that “actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.”); see also United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008) (“Fourth Circuit precedent has likewise not extended the reach of the savings clause to those petitioners challenging only their sentence.” (citing In re Jones, 226 F.3d at 333-34)). Clearly there has been no change in the law making it now legal to conspire to distribute methamphetamine. Accordingly, Moran fails to meet the In re Jones standard to show that § 2255 is inadequate to test the legality of his conviction and, thus, his claims cannot be addressed under § 2241.
For the reasons stated, I will grant respondent’s motion to dismiss ...