United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck, United States District Judge.
Richard Fortenberry, Jr., a federal inmate proceeding pro
se, submitted a 28 U.S.C. § 2241 Petition.
("§ 2241 Petition," ECF No. I.) 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.
Procedural History and Summary of Fortenberrv's
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.
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.
§ 2241 Petition, Fortenberry challenges his sentence
imposed by the Sentencing Court. (See § 2241
Pet. 1-6.) 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.)
discussed below, Fortenberry fails to demonstrate that
Nelson has any applicability to his sentence, and
thus, he lacks entitlement to relief on either claim.
Motions under 28 U.S.C. 8 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. 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). "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 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
United States v. Wheeler,
886 F.3d 415, 429 (4th
Cir. 2018) (citations omitted), cert, denied, No.
18-420, 2019 WL 1231947 ...