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Fortenberry v. Ormond

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

April 25, 2019

JOHN RICHARD FORTENBERRY, JR., Petitioner,
v.
J. RAY ORMOND, Respondent.

          MEMORANDUM OPINION

          M. Hannah Lauck, United States District Judge.

         John Richard Fortenberry, Jr., a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 Petition. ("§ 2241 Petition," ECF No. I.)[1] The Government filed a Motion to Dismiss. (ECF No. 8.) For the reasons set forth below, the Government's Motion to Dismiss will be granted and the § 2241 Petition will be dismissed for want of jurisdiction.

         I. Procedural History and Summary of Fortenberrv's Claim

         A grand jury sitting in the United States District Court for the Western District of Missouri ("Sentencing Court") charged Fortenberry by Superseding Indictment with use of an interstate facility to attempt to entice a minor to engage in sexual activity (Count One); transfer of obscene matter to an individual under the age of sixteen (Count Two); and, committing the former offenses at times when he was required to register as a sex offender (Count Three). Fortenberry v. United States, Nos. 15-0280-CV-W-DGK, 13-CR-00076-W-DGK-1, 2016 WL 7015675, at *1 (W.D. Mo. Nov. 29, 2016). Fortenberry pled guilty to Count One and received a 324-month term of incarceration. See Id. at * 1-2.

         Fortenberry filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion"), which the Sentencing Court denied. See Id. at *1, *4.

         In his § 2241 Petition, Fortenberry challenges his sentence imposed by the Sentencing Court. (See § 2241 Pet. 1-6.)[2] Specifically, Fortenberry raises the following claims for relief:

Claim One: "Pursuant to Nelson v. Colorado, 137 S.Ct. 1249 (2017), [Fortenberry's] sentence can no longer be enhanced based on uncharged relevant conduct." (Id. at 3.)
Claim Two: "Nelson v. Colorado, 137 S.Ct. 1249 (2017) is retroactively applicable to cases on collateral review." (Id. at 4.)

         As discussed below, Fortenberry fails to demonstrate that Nelson has any applicability to his sentence, and thus, he lacks entitlement to relief on either claim.

         II. Motions under 28 U.S.C. 8 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. 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).[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 Fourth Circuit recently expanded the longstanding "controlling test," id, as follows:

[W]e conclude that § 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (citations omitted), cert, denied, No. 18-420, 2019 WL 1231947 ...


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