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Mills v. Wilson

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

November 10, 2016

GREGORY D. MILLS, Petitioner,
v.
ERIC D. WILSON, Respondent.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge

         Gregory 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 dismissed.

         I. REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendations:

         A. Procedural History and Summary of Mills's Claim

         Mills 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.

         In his § 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).[1] 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.

         B. Motions under 28 U.S.C. § 2255 Compared to Petitions under 28 U.S.C. § 2241

         A 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. § 2255(e).[2]

         "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 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) (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 ...

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