United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
John Tyer, a federal inmate, was convicted in 2011 of
conspiracy to manufacture methamphetamine and possession of a
firearm in furtherance of a drug trafficking crime. He filed
this petition for a writ of habeas corpus 28 U.S.C. §
2241, seeking a resentencing hearing or evidentiary hearing
to establish his actual innocence. He is currently serving a
total of 192 months in prison. His petition argues that he is
actually innocent of the crimes for which he was convicted
and seeks to prove his innocence with newly discovered
evidence. See Pet. at 4 (ECF No. 1). Because Tyer already
raised similar claims in a motion for relief before the
sentencing court, and his petition does not fall within the
narrow range of claims which may be brought by federal
prisoners under the so-called "savings provision"
of 28 U.S.C. § 2255(e), the court should DISMISS
Tver's petition under § 2241 for lack of
STATEMENT OF THE CASE
8, 2011, the United States District Court in the Eastern
District of North Carolina sentenced Tyer to 226 months'
imprisonment. This sentence consisted of 166 months'
imprisonment for conspiracy to manufacture methamphetamine
and 60 months' imprisonment consecutive to the first
sentence for possession of a firearm in furtherance of a drug
trafficking offense. J. Order at 3, United States v.
Tver. No. 5:10cr238-F-3 (E.D.N.C July 8, 2011) (ECF No.
179). After appealing his sentence to the Fourth Circuit
unsuccessfully, Tyer moved under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. See Def.'s
Mem. in Supp. of Mot. to Vacate, United States v.
Tver. No. 5:10cr238-F-3 (E.D. N.C. June 21, 2013) (ECF
No. 258-1). The district court dismissed the motion to vacate
under § 2255. Order, United States v. Tver. No.
5:10cr238-F-3 (E.D. N.C. Feb. 27, 2015) (ECF No. 272). The
Fourth Circuit upheld the dismissal of Tyer's motion.
United States v. Tver, No. 15-6526, slip op. (4th
Cir. June 30, 2015).
remains in custody at Federal Correctional Institute
Petersburg in the Eastern District of Virginia. See 28 U.S.C.
§ 127; Pet. Form at 1 (ECF No. 1). He files the present
petition under 28 U.S.C. § 2241. Pet. at 2 (p. 8 to ECF
No. 1). His present petition argues he is being detained for
a crime of which he is actually innocent and has new evidence
to support this claim. Specifically, as he did in his
original § 2255 motion for relief, he argues he could
not have possessed any firearms in furtherance of a drug
trafficking crime because the government seized the weapons
on the day they arrested him for the drug offense. Because
Tyer has already filed a § 2255 motion in the district
court where he was sentenced, and the time has passed for him
to file a motion for reconsideration, he also claims that a
petition pursuant to 28 U.S.C. § 2241 is proper.
Id. at 3 (pp. 8-9 to ECF No. 1). It is not.
The savings clause in § 2255 of the Habeas Corpus
Statute is narrowly construed.
prisoners must ordinarily challenge their sentence by motion
under 28 U.S.C. § 2255, "which channels collateral
attacks by federal prisoners to the sentencing court (rather
than to the court in the district of confinement) so that
they can be addressed more efficiently." In re
Jones. 226 F.3d 328, 332 (4th Cir. 2000) (quoting
Triestman v. United States. 124 F.3d 361, 373 (2d
Cir. 1997)). Section 2255(h) prohibits successive motions for
relief except in certain circumstances. See 28 U.S.C. §
2255(h). This gatekeeping provision, enacted with the
Antiterrorism Effective Death Penalty Act
("AEDPA"), limits successive motions to those that
are timely and based upon either (1) newly discovered
evidence or (2) a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme
Court. United States v. Poole. 531 F.3d 263, 266 n.
4 (4th Cir. 2008) (citing 28 U.S.C. § 2255(h)).
has already sought relief from the district of conviction
using § 2255, and his petition does not allege any new
rule of constitutional law or timely discovery of
innocence-proving evidence since the filing of that petition.
As a result, he has filed this petition for a writ of habeas
corpus under § 2241, asserting that § 2255 is
inadequate or ineffective to test the legality of his
confinement. Pet. at 2 (p. 8 to ECF No. 1); see 28 U.S.C.
§ 2255(e). "Indeed, when § 2255 proves
'inadequate or ineffective to test the legality of. . .
detention, ' a federal prisoner may seek a writ of habeas
corpus pursuant to § 2241." In re Jones,
226 F.3d at 333 (quoting 28 U.S.C. §
Fourth Circuit has interpreted this so-called "savings
clause" of § 2255 narrowly. Claims challenging the
validity of a federal prisoner's conviction or sentence
may be brought under § 2241 only when § 2255 is
"inadequate or ineffective to test the legality of [the
prisoner's] detention." §
2255(e). And, § 2255 is inadequate or
ineffective only when:
at the time of conviction, settled law of [the Fourth
Circuit] or the Supreme Court established the legality of
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
the prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of
In re Jones. 226 F.3d at 333-34. Importantly, the
savings clause in § 2255 is available only to those
alleging "actual innocence of the underlying offense of
conviction." Darden v. Stevens, 426 Fed.Appx.
173, 174 (4th Cir. 2011) (unpublished); see In re
Jones, 226 F.3d at 333-34 ("such that the conduct
of which the prisoner was convicted is deemed not to be
criminal" (emphasis added)); United States v.
Poole, 531 F.3d 263, 267 n. 7 (4th Cir. 2008) (citing
In re Jones. 226 F.3d at 333-34) ("Fourth
Circuit precedent has likewise not extended the reach of the
savings clause to those petitioners challenging only their
sentence."). While petitions under § 2241 may be
used to challenge the execution of a federal sentence,
United States v. Little, 392 F.3d 671, 679 (4th Cir.
2004), challenges to the validity of a federal sentence must
fit within the Fourth Circuit's limited view of the
savings clause articulated in In re Jones.
Tyer's challenge does not.
Tyer's Petition fails to meet the In re Jones
test because he alleges no substantive law change that would
affect the legality of his conviction.
urges the court to consider his petition under § 2241
because he "can no longer file a § 2255 motion,
" due to that section's statute of limitations. Pet.
at 2 (p. 8 to ECF No. 1). More is required to fit within
§ 2255's savings clause. As explained above, the
Fourth Circuit has made clear the district courts only have
jurisdiction to hear § 2241 petitions in the limited
circumstance that the law has changed to make the conduct
underlying a conviction no longer criminal. See In re
Jones, 226 F.3d at 333-34. Tyer has cited no change in
the law that would make innocent the conduct underlying his
conviction. In this way, he fails to meet the second of the
In re Jones elements, which requires that the
"substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be
criminal." See Id. at 334. In fact, the claims
Tyer attempts to allege here are nearly identical to those
alleged in his original motion for relief made under §