United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DISMISSING 28 U.S.C. § 2241
E. HUDSON UNITED STATES DISTRICT JUDGE.
Brown, a federal inmate proceeding pro se, submitted
this Petition for a Writ of Habeas Corpus ("§ 2241
Petition/5 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 ("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."). For the reasons
set forth below, the § 2241 Petition will be dismissed
for lack of jurisdiction.
was convicted in this Court of "conspiracy to distribute
crack cocaine, distribution of crack cocaine, and aiding or
inducing the distribution of crack cocaine." United
States v. Brown, No. 97-4242, 1998 WL 66590, at *1 (4th
Cir. Feb. 19, 1998).
the Court denied a 28 U.S.C. § 2255 motion filed by
Brown. See United States v. Brown, No.
99-7008, 1999 WL 1020772, at *1 (4th Cir. Nov. 10, 1999). In
her § 2241 Petition, Brown contends that she is entitled
to relief because this Court lacked jurisdiction to prosecute
her. As explained below, it is plain under the precedent in
the United States Court of Appeals for the Fourth Circuit
that Brown may not utilize 28 U.S.C. § 2241 to challenge
her conviction or sentence.
Motions under 28 U.S.C. § 2255 Compared to Petitions
under 28 U.S.C. § 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, and such
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 Del 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). "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.l (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
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
[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 gate
keeping 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).
Analysis of Brown's 28 U.S.C. § 2241 Petition
fails to satisfy the second prong of In re Jones. See
Id. at 334. Specifically, Brown fails to demonstrate
that "subsequent to [her] direct appeal and [her] first
§ 2255 motion, the substantive law changed such that the
conduct of which [she] was convicted is deemed not to be
criminal." Id. (emphasis added). Brown's
conduct in distributing crack and conspiring to distribute
crack remains a crime. Accordingly, Brown's § 2241
Petition will be dismissed for lack of jurisdiction. The
Court will deny a certificate of appeal ability.
appropriate Final Order will accompany this ...