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Toohey v. Wilson

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

June 26, 2018

JEFFREY GLENN TOOHEY, Petitioner,
v.
ERIC WILSON, Respondent.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATE0STRICT JUDGE

         Jeffrey Glenn Toohey, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 Petition. ("§ 2241 Petition," ECF No. 1.)[1] For the reasons set forth below, the § 2241 Petition will be dismissed for want of jurisdiction.

         I. Procedural History and Summary of Toohev's Claim

         In the 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).

         In 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 *3.

         In his § 2241 Petition, Toohey challenges his convictions in the Sentencing Court. (See § 2241 Pet. 9-13.)[2] 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.)

         Toohey then provides a lengthy list of instances where he believes counsel was ineffective throughout his criminal proceedings. (See Id. 10-13.)

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

         A 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).[3] "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).[4]

         The 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).[5] 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).

         III. Analysis of Toohev's 28 U.S.C. ...


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