United States District Court, E.D. Virginia, Richmond Division
GREGORY D. MILLS, Petitioner,
ERIC D. WILSON, Respondent.
E. Payne, Senior United States District Judge
D. Mills, a federal inmate proceeding pro se, filed
this 28 U.S.C. § 2241 petition (“§ 2241
Petition, " ECF No. 1). The Magistrate Judge recommended
that the Court dismiss the § 2241 Petition for want of
jurisdiction. Mills filed objections. (ECF No. 12.) For the
reasons that follow, the Report and Recommendation will be
accepted and adopted and the § 2241 Petition will be
REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
Procedural History and Summary of Mills's Claim
pled guilty to conspiracy to distribute and possess with
intent to distribute 28 grams or more of cocaine base and, in
January 2013, the Court sentenced him to 18 0 months of
incarceration. See United States v. Mills, No.
3:13-CV-581, 2015 WL 2126981, at *1 (E.D. Va. May 6, 2015) .
Mills filed no appeal. By Memorandum Opinion and Order
entered on May 6, 2015, the Court denied Mill's 28 U.S.C.
§ 2255 motion. See id.
§ 2241 Petition, Mills contends that his sentence is
unconstitutional in light of the United States Court of
Appeals for the Fourth Circuit's holding in Simmons
v. United States, 649 F.3d 237 (4th Cir.
2011). Mills fails to explain how
Simmons entitles him to any relief. For the reasons
set forth below, the Court RECOMMENDS that this action be
DISMISSED FOR WANT OF JURISDICTION.
Motions under 28 U.S.C. § 2255 Compared to Petitions
under 28 U.S.C. § 2241
motion made 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. Pet.
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. §
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.
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) (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 ...