United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
Hager, a federal inmate proceeding pro se, has filed a
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241, asking for release from detention under a void
criminal judgment. After review of the record, the court will
summarily dismiss the petition.
pleaded guilty in the United States District Court for the
Northern District of Iowa to a charge of conspiring to
distribute 100 grams or more of heroin within 1, 000 feet of
a school. The Court sentenced Hager to the statutory maximum
sentence of 960 months in prison,  and the judgment was
affirmed on appeal. See United States v. Hager, 609
Fed.Appx. 355 (8th Cir. April 24, 2015), cert denied, 136
S.Ct. 2031 (2016). Hager's motion to vacate, set aside or
correct the sentence under 28 U.S.C. § 2255 was denied
in 2017. Pet. 18, ECF No. 1.
construed, Hager's 51-page § 2241
petition contends that his detention by the warden
of the United States Penitentiary in Lee County, Virginia
("USP Lee") violates due process, because
Hager's conviction and sentence were void when imposed.
Hager denies that his petition attacks the legality of the
criminal judgment against him or that he seeks to have that
judgment set aside. He allegedly seeks a "civil
remedy" to obtain release from allegedly
unconstitutional detention. Id. at 18.
offers several legal "grounds" to prove that the
judgment is allegedly "void because it is contrary to
the Constitution." Id. at 17. He argues that
the indictment was unconstitutionally vague because it did
not state, nor did the grand jury charge, the actual drug
amount used to calculate his lengthy sentence. He contends
that because he pleaded guilty believing his sentence would
be 80 months in prison, his plea was not knowing and valid.
He complains that the now-advisory federal sentencing
guidelines would have "cured the vague indictment"
if they had been mandatory instead, as Congress intended.
Id. at 27. Hager contends that the Supreme Court
violated "Separation of Powers" by ruling that the
mandatory aspect of the guidelines had to be changed.
Id. at 28. He complains that using relevant conduct
to increase his sentence changed his crime of conviction.
Id. at 24. Hager asserts: "The court had
authority to punish for the agreement to distribute the
100-grames [sic] within the protected area. Everything else
violated Mr. Hager's due process of law."
Id. at 37. Hager argues that any conspiracy in which
he participated was complete when he agreed to it, and thus,
it fell outside the scope of the Controlled Substances Act,
because his activity within 1, 000 feet of a school did not
affect interstate commerce. Accordingly, he insists, he
pleaded guilty to a "non-existent offense," making
his plea (and the criminal judgment) "void."
Id. at 42-43. In the alternative, he asserts that
the statute of conviction itself, 21 U.S.C. § 860, is
unconstitutional, because prohibiting drug trafficking in one
local, protected area is not "Necessary and Proper for
the Regulation of Commerce," citing Article I, section
8, Clause 18 of the Constitution. Id. at 48.
prisoner may file a motion under § 2255 to collaterally
attack the legality of his detention under a conviction or
sentence. 28 U.S.C. § 2255(a); Davis v. United
States, 417 U.S. 333, 343 (1974). A district court
cannot entertain a petition for a writ of habeas corpus under
§ 2241 petition challenging the validity of an
inmate's detention under a federal court judgment unless
a motion pursuant to 28 U.S.C. § 2255 is
"inadequate or ineffective to test the legality of [that
inmate's] detention." 28 U.S.C. § 2255(e)
("the savings clause"); United States v.
Wheeler. 886 F.3d 415, 423 (4th Cir. 2018). The United
States Court of Appeals for the Fourth Circuit has concluded
that § 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
In re Jones, 226 F.3d 328, 333-34 (4th Cir.
cannot satisfy this standard, because he fails to identify
any intervening change in substantive law that decriminalized
the acts for which he was convicted. Without question,
conspiracy to distribute controlled substances within 1, 000
feet of a school is still a violation of federal criminal
law. Hager's arguments in his § 2241
petition-attempting to invalidate the criminal judgment
convicting and sentencing him-fall squarely within the
category of claims that he could have raised on direct appeal
or in his first § 2255 motion. The fact that such claims
would now be barred as successive or untimely filed if raised
in a second § 2255 motion does not authorize Hager to
raise them instead in a § 2241 petition through the
narrow window of the savings clause of § 2255(e). In
re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)
("[T]he 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, ") (citations omitted).
more stringent standard applies to § 2241 challenges to
the legality of an inmate's sentence as imposed. To bring
such claims, the prisoner must show that:
(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.
Wheeler, 886 F.3d at 429. Hager fails to show that
his sentence now constitutes "an error sufficiently
grave to be deemed a fundamental defect" in light of
particular changes in substantive law that occurred after his
initial § 2255 motion and have also been found to ...