United States District Court, E.D. Virginia, Richmond Division
KUNTA K. REDD, Petitioner,
ERIC WILSON, Respondent.
A.GIBNEY, JR. UNITED STATES DISTRICT JUDGE
K. Redd, a federal inmate proceeding pro se,
submitted a 28 U.S.C. § 2241 Petition ("§ 2241
Petition"). For the reasons set forth below, the
§2241 Petition will be dismissed for want of
was convicted in the United States District Court for the
Eastern District of North Carolina ("the Sentencing
Court") of distribution of in excess of fifty (50) grams
of cocaine base and was sentenced to 188 months of
imprisonment. (§ 2241 Pet. 3.) The Sentencing Court
previously has denied a 28 U.S.C. § 2255 motion filed by
Redd. United States v. Redd, 519 F.App'x 173(4th
Cir. 2013). In his present § 2241, Redd contends that he
was improperly sentenced and deserves to be resentenced.
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 Or., 911 F.2d 1111, 1113 (5th Cir. 1990)). A
federal inmate may not proceed under 28 U.S.C. § 2241
unless he 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." In re
Vial, 115 F.3d at 1194 n.5 (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 gatekeeping 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 own, has no source of redress." Id. at 333
n.3 (emphasis added).
fails to satisfy the second prong of In re Jones. See
Id. at 334. Redd fails to demonstrate that
"subsequent to [his] direct appeal and [his] first
§ 2255 motion, the substantive law changed such that the
conduct of which [he] was convicted is deemed not to be
criminal.'" Id. (emphasis added). The conduct
of which Redd stands convicted, distribution of 50 grams or
more of cocaine base, is still criminal. Instead, Redd seeks
to proceed by § 2241 to challenge his purportedly
illegal sentence. However, the "Fourth Circuit... has
... not extended the reach of the savings clause to those
petitioners challenging only their sentence."
Poole, 531 F.3d at 267 n.7 (citing In re
Jones, 226 F.3d at 333-34). Because Redd fails to
demonstrate that § 2255 is inadequate and ineffective to
test the legality of his conviction, he may not proceed under
§ 2241. Accordingly, the § 2241 Petition (ECF No.
1) will be DISMISSED FOR WANT OF JURISDICTION. The Court will
deny a certificate of appealability.
appropriate Final Order will accompany this Memorandum
 "This 'inadequate and
ineffective' exception is known as the 'savings
clause' to [the] limitations imposed by §
2255." Wilson v. Wilson, No. 1:11cv645
(TSE/TCB), 2012 WL 1245671, at *3 (E.D. Va. Apr. 12, 2012)
(quoting In re ...