Bearden v. Atkins

Filing 13

ORDER re 1 Petition for Writ of Habeas Corpus filed by Anthony Bearden. It is ordered that the Petitioner's § 2241 Petition is recharacterized as a § 2255 motion, and this case is transferred to the sentencing court, the Western District of Tennessee. Signed by Honorable Timothy M Cain on 2/27/2013. (abuc) [Transferred from South Carolina on 2/27/2013.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Anthony Bearden,
Petitioner,
v.
Kenny Atkins, Warden,
Respondent.

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C/A No. 1:12-3093-TMC
ORDER

Petitioner, a federal prisoner proceeding pro se, filed this action pursuant to 28
U.S.C. § 2241 challenging a federal sentence imposed by the United States District
Court for the Western District of Tennessee.
In a prior order, (Dkt. # 9), the court determined that the instant petition should be
converted to a motion under § 2255 and, accordingly, gave Petitioner an opportunity to
express his consent to the conversion or to withdraw or amend his petition. See Castro
v. United States, 540 U.S. 375, 383 (2003). The court also informed Petitioner that
second or successive motions under § 2255 generally are prohibited, and would have to
be certified by a panel of the appropriate court of appeals under limited circumstances.
See 28 U.S.C. § 2255(h). Petitioner was ordered to file a response to the court’s Order
by January 25, 2013, indicating whether he consents to having this petition converted
to a § 2255 motion and transferred to the sentencing court. (Dkt. # 9).
Petitioner filed a response on January 25, 2012, questioning whether the sole
issue which he raises in his petition (whether he was denied due process based upon
trial counsel’s failure to timely file an appeal as requested) is a challenge to the legality
of his conviction or sentence. (Dkt. # 12- Pet’r’s Obj. at 2). Petitioner stated that if the
court could provide reference to a federal statute or a judicial decision which would

allow this issue to be addressed pursuant to 2255, then he would withdraw all objections
and proceed as this court directs. Id.
A motion filed pursuant to § 2241 necessarily must pertain to “an applicant's
commitment or detention,” rather than the imposition of a sentence.

Compare 28

U.S.C. § 2242 (§ 2241 application for writ of habeas corpus must allege facts
concerning the applicant's commitment or detention) and 28 U.S.C. § 2255 (motions to
vacate a sentence brought under § 2255 are collateral attacks upon the imposition of a
prisoner's sentence). Petitioner is challenging his conviction and sentence based on the
alleged ineffective assistance of counsel. This is not a claim that falls under § 2241.
See Manigault v. Lamanna, C/A No. 8:06–47–JFA–BHH, 2006 WL 1328780 at *1, fn. 4
(D.S.C. May 11, 2006)(holding § 2241 challenges go to the execution or implementation
of a federal prisoner's sentence and usually involve “parole matters, computation of
sentence by prison officials, prison disciplinary actions, and prison transfers.”). In this
action, Petitioner is clearly attacking the validity of his sentence and this type of claim
should usually be brought under § 2255 in the sentencing court. Id.
A district court, however, may entertain a § 2241 petition attempting to invalidate
a sentence or conviction if a motion pursuant to § 2255 is “inadequate or ineffective to
test the legality of [an inmate's] detention.”

Swain v. Pressley, 430 U.S. 372, 381

(1977). Section 2255 is inadequate and ineffective to test the legality of an inmate's
conviction only when the inmate satisfies a three-part standard by showing that:
(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).

Furthermore, a procedural

impediment to § 2255 relief, such as the statute of limitations or the rule against

successive petitions, does not render § 2255 review “inadequate” or “ineffective.” See In
re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997).
Petitioner fails to demonstrate that § 2255 is inadequate or ineffective to test the
legality of his detention so as to allow him to bring his claim under § 2241. The claim he
raises - that his counsel was ineffective for failing to file an appeal - is one that should
be brought in a § 2255 motion.

And Petitioner’s claim does not meets the Jones

standard so as to qualify for consideration under § 2241. Accordingly, Petitioner’s
objections are overruled.
It is therefore ORDERED that the Petitioner’s § 2241 Petition is recharacterized
as a § 2255 motion, and this case is transferred to the sentencing court, the Western
District of Tennessee.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
February 27, 2013

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.