United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATE0STRICT JUDGE
Glenn Toohey, a federal inmate proceeding pro se,
submitted a 28 U.S.C. § 2241 Petition. ("§
2241 Petition," ECF No. 1.) For the reasons set forth
below, the § 2241 Petition will be dismissed for want of
Procedural History and Summary of Toohev's
United States District Court for the Eastern District of
North Carolina ("Sentencing Court"), Toohey pled
guilty to one count of aiding and abetting identity theft,
one count of aiding and abetting access device fraud, two
counts of aggravated identity theft, one count of bank fraud,
and one count of conspiracy to present false claims. See
United States v. Toohey, 514 Fed.Appx. 334, 335 (4th
Cir. 2013). The Sentencing Court sentenced Toohey to 125
months of imprisonment. See Id. On March 15, 2013,
the United States Court of Appeals for the Fourth Circuit
dismissed Toohey's appeal of his sentence. Id.
On April 15, 2013, the Supreme Court of the United States
denied Toohey's petition for a writ of certiorari.
Toohey v. United States, 569 U.S. 941 (2013).
January 2015, Toohey filed a motion under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence
("§ 2255 Motion") with the Sentencing Court.
See Toohey v. United States, Nos. 4:12-CR-46-BR,
4:15-CV-3-BR, 2015 WL 12697876, at *1 (E.D. N.C. June 12,
2015). On June 12, 2015, the Sentencing Court dismissed
Toohey's § 2255 Motion as untimely. Id. at
§ 2241 Petition, Toohey challenges his convictions in
the Sentencing Court. (See § 2241 Pet.
9-13.) Specifically, Toohey raises the following
claim for relief:
Claim One: "A lack of counsel caused a procedural
default in [Toohey's] initial-review collateral
proceeding (28 U.S.C. § 2255) resulting in
[Toohey's] substantial claims of pretrial, trial,
sentencing and appellate ineffective counsel to be foregone,
therefore [Toohey's] substantial ineffectiveness claims
have never been addressed." (§ 2241 Pet. 10.)
then provides a lengthy list of instances where he believes
counsel was ineffective throughout his criminal proceedings.
(See Id. 10-13.)
Motions under 28 U.S.C. S 2255 Compared to Petitions under 28
U.S.C. S 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. Det. Or., 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.
Fourth Circuit has stressed that an inmate may proceed under
§ 2241 to challenge his or her 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 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 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).
Analysis of Toohev's 28 U.S.C. ...