United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Ellis, III United States District Judge.
Lamont Dudley, a federal inmate housed in the Eastern
District of Virginia and proceeding pro se, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, seeking vacation of his conviction of conspiracy
to possess with intent to distribute and aiding and abetting
the possession with intent to distribute entered on a plea of
guilty in the United States District Court for the Western
District of North Carolina. United States v. Dudley.
Case No. 5:97CR1-RLV. Petitioner has neither paid the
statutory filing fee for this action nor applied to proceed
in forma pauperis. For the reasons that follow, this
petition must be construed as a successive motion to vacate
pursuant to 28 U.S.C. § 2255 and dismissed, without
prejudice to petitioner's right to move a panel of the
United States Court of Appeals for the Fourth Circuit for an
order authorizing the sentencing court to consider the
of the docket of Case No. 5:97CR1-RLV, which is available
through the court's PACER system, reveals the following
facts. On July 11, 1997, Dudley entered
"straight-up" guilty pleas to violations of 21
U.S.C. §§846 and 841 and 18 U.S.C. §2. Over
objection, he was sentenced as a career criminal to a term of
360 months imprisonment. The conviction and sentence were
upheld on direct appeal. United States v. Dudley. R.
No. 98-4166 (4th Cir. Oct. 29, 1998) (unpublished).
September 27, 1999, Dudley filed a motion to vacate pursuant
to 28 U.S.C. §2255. The motion was denied and dismissed
by an Order entered on March 27, 2002, and Dudley's
appeal of that result also was dismissed. Dudley v.
United States. R. No. 02-6735 (4th Cir. Sept. 23, 2002).
thereafter undertook an unusually active course of
postconviction litigation. Among the numerous motions he
filed were several which, although denominated as seeking
various forms of relief, were dismissed as being in legal
effect successive motions to vacate pursuant to §2255.
Case No. 5:97CR1-RLV, DE## 151, 158, 162, 164, 168, 171, 173,
175, 179, 183. The Fourth Circuit Court of Appeals dismissed
Dudley's appeals of those orders. Id., DE##153,
instant case, Dudley argues that because he did not admit all
of the essential elements of the charges against him, the
judgment of conviction against him is void pursuant to Fed.
R. Crim. P. 11(b)(3). Pet. at 6-8. Accordingly, he seeks an
evidentiary hearing and ultimately the vacation of the
convictions through the instant petition for a writ of habeas
corpus pursuant to § 2241.
motion pursuant to 28 U.S.C. § 2255 provides the primary
means of collateral attack on the imposition of a federal
conviction and sentence. Rice v. Rivera. 617 F.3d
802, 807 (4th Cir. 2010) ("|TJt is well established that
defendants convicted in federal court are obliged to seek
habeas relief from their conviction and sentences through
§ 2255."). The Antiterrorism and Effective Death
Penalty Act of 1996 restricted the jurisdiction of the
district courts to hear second or successive applications for
§ 2255 federal habeas corpus relief by establishing a
"gatekeeping mechanism." Felker v. Turpin.
518 U.S. 651, 657 (1996). Now, "[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.
federal inmate may not proceed under 28 U.S.C. § 2241
unless he demonstrates that the remedy afforded by §
2255 "is inadequate or ineffective to test the legality
of his detention." 28 U.S.C. § 2255
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. Nonetheless - and of
particular importance here - 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). Thus, a federal inmate may
proceed under § 2241 to challenge his conviction or
sentence "in only very limited circumstances."
United States v. Poole. 531 F.3d 263, 269 (4th Cir.
Fourth Circuit has announced a three-part test to determine
whether a petition challenging the lawfulness of a conviction
or sentence can be brought under § 2241:
Section 2255 is inadequate and ineffective to test the
legality of a conviction when: (1) at the time of the
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
In re Jones. 226 F.3d 328, 333-34 (4th Cir. 2000).
This test was formulated expressly 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 own, he has no source
of redress." Id. at 333 n. 3.
case, petitioner cannot satisfy the Jones criteria;
indeed, he makes no attempt to do so, and argues essentially
only that his convictions were erroneous when entered.
Therefore, because petitioner's claim falls outside the
§ 2255 savings clause, he may not proceed under §
2241, and the instant application must be construed as a
successive motion for relief under § 2255. As such, the
motion may not be brought unless certified as provided in 28
U.S.C. § 2244 by a panel of the Fourth Circuit Court of
Appeals. Because no such certification has been granted, this
petition must be dismissed, without prejudice. Petitioner is