Ardd v. Harrison

Filing 5

ORDER Transferring Second or Successive 2255 Motion to Sixth Circuit Court of Appeals. The Clerk of Court is DIRECTED to transfer the motion. Signed by Judge Samuel H. Mays, Jr. on August 28, 2024. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
)
)
Movant,
)
)
v.
)
No. 2:24-cv-02324-SHM-tmp
)
)
WARDEN C. HARRISON,
)
)
Defendant.
)
ORDER TRANSFERRING SECOND OR SUCCESSIVE § 2255 MOTION TO
SIXTH CIRCUIT COURT OF APPEALS
NICKEY ARDD,

Before the Court is Nickey Ardd’s Pro Se Petition for a Writ
of Habeas Corpus Under 28 U.S.C. § 2241, filed on May 15, 2024.
(ECF No. 1.)

The government has not responded in the time allowed

by the local rules.

L. R. Civ. P. 7.2(a)(2).

For the reasons

below, the petition is construed as a second or successive Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.
Because Movant has not obtained permission to file the instant
Motion, the Court lacks jurisdiction to render a decision, and the
Clerk of Court is ORDERED to transfer the Motion to the United
States Court of Appeals for the Sixth Circuit.
I.

Background

On October 13, 2017, a jury convicted Movant of possession
with intent to distribute cocaine; carrying a firearm in relation
to a drug trafficking crime; possession of a firearm from which
the serial number has been removed and altered; and two counts of

possession of a firearm by a convicted felon.

Indictment, Jury

Verdict, United States v. Ardd, No. 16-20094 (W.D. Tenn. 2017)
(ECF Nos. 1, 105.)

Movant received a total sentence of 270 months.

Id. (ECF No. 136.)

His convictions were affirmed on direct appeal

on December 18, 2018.

Id. (ECF No. 155.)

On May 30, 2019, Movant filed a pro se § 2255 motion, raising
claims of ineffective assistance of trial and appellate counsel.
Mot. to Vac., Set Aside, or Corr. Sent., Ardd v. United States,
No. 19-2345 (W.D. Tenn. 2022) (ECF No. 1) (the “2019 Motion.”)
June 29, 2022, the Court denied the motion on the merits.

On
Id.

(ECF No. 18.)
Movant once again challenges his October 2017 convictions.
He concedes that he has filed a § 2255 Motion, but has not received
permission from the Sixth Circuit to file a second or successive
motion.
II.

(ECF No. 1 at 4.)
Standard of Review

Section 2241 permits courts to issue writs of habeas corpus
when a prisoner “is in custody in violation of the Constitution or
laws or treaties of the United States.”

28 U.S.C. § 2241(a)(3).

That section has been narrowly construed to permit prisoners to
challenge only “the execution or manner in which [their] sentence
is served.”

Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir.

1999) (per curiam).

Challenges to the validity of a conviction or

sentence must be challenged under § 2255.
2

Id. at 755-57.

“A

district court has no jurisdiction over an application . . . under
section 2241 if the petitioner could seek relief under section
2255, and either has not done so or has done so unsuccessfully.
The only escape route is the saving clause.”

Taylor v. Owens, 990

F.3d 493, 499 (6th Cir. 2021.)
The saving clause permits a prisoner to file a § 2241 petition
in

the

rare

circumstances

where

a

§

2255

motion

would

be

“inadequate or ineffective to test the legality of [the prisoner’s]
detention.” Id. at 495-96. “[T]he § 2255 remedy is not considered
inadequate or ineffective simply because § 2255 relief has already
been denied, or because the petitioner is procedurally barred from
pursuing relief under § 2255, or because the petitioner has been
denied permission to file a second or successive motion to vacate.”
Charles, 180 F.3d at 756 (internal citations omitted.)
Under the Antiterrorism and Effective Death Penalty Act of
1996,

Pub.

L.

No.

104-132,

110

Stat.

1214

(Apr.

24,

1996)

(codified, inter alia, at 28 U.S.C. §§ 2244, et seq.) (“AEDPA”),
federal courts have limited authority to grant relief to those who
have previously filed a habeas petition.

Petitioners are required

to seek permission from a federal appeals court before filing a
“second or successive” petition in district court. In re Tibbetts,
869 F.3d 403, 405 (6th Cir. 2017.)

Without permission from the

court of appeals, a district court does not have permission to

3

review a second or successive petition.

Moreland v. Robinson, 813

F.3d 315, 322 (6th Cir. 2016.)
The term “second or successive” is not defined, and not every
petition that is filed second in time is second or successive and
subject to AEDPA’s restrictions.
(internal

citations,

In re Tibbetts, 869 F.3d at 405

quotation

marks

omitted).

To

determine

whether a second-in-time petition is second or successive, a court
must first determine whether it challenges the same judgment as
the prior petition.

In re Hill, 81 F.4th 560, 569 (6th Cir. 2023).

If the petition challenges a previously challenged judgment
and raises claims that were presented in the first petition, the
petition is second or successive.
been

previously

presented,

but

Id.
the

However, if a claim has

court

found

that

it

was

unexhausted, or if the claim was unripe when the first petition
was filed, the second-in-time petition is not second or successive.
Id.

If the claims were neither unripe nor unexhausted when the

first petition was filed, the petition is second or successive and
must be transferred.

Id.

III. Analysis
The

Court

construes

Petitioner’s

§

2241

Petition

as

a

§ 2255 Motion, and dismisses the Motion as second or successive.
Petitioner

challenges

the

validity

of

his

sentence,

not

the

“execution or manner in which [his] sentence is [being] served.”
Charles, 180 F.3d at 755-56.

The Court lacks jurisdiction to
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entertain a § 2241 petition where a § 2255 motion could provide
relief instead.

Taylor, 990 F.3d at 499.

Although the saving clause permits prisoners to file § 2241
petitions in the limited circumstances where a § 2255 motion would
be “inadequate or ineffective to test the legality of [their]
detention,”
applies.

Movant

has

not

shown

that

this

narrow

exception

Id. at 495-96; Charles, 180 F.3d at 755-56.

Movant

argues that the court has jurisdiction to resolve his case under
§ 2241 because his petition addresses a “misapplied sentence” and
because he seeks to invoke caselaw that applies retroactively but
was not available when his previous § 2255 motion was filed.

(ECF

No. 1 at 5.)
First, Movant’s claim that the guidelines enhancement for
career offenders was inappropriately applied to his case is a
direct challenge to the validity of his sentence, not to the manner
in which it is being applied.
that

he

is

entitled

to

Second, if Movant wishes to argue

relief

under

caselaw

that

applies

retroactively, but was not available when his prior petition was
filed, the appropriate avenue for relief is an application to the
Sixth Circuit.

Section 2244(b)(2)-(3) contemplates precisely this

situation, permitting the Court of Appeals to authorize second or
successive habeas applications where the applicant makes a prima
facie

showing

of

“a

new

rule

of

constitutional

law,

made

retroactive to cases on collateral review by the Supreme Court,
5

that was previously unavailable.”1
405.

In re Tibbetts, 869 F.3d at

Movant may not use § 2241 to make this argument directly to

the district court.
Because Movant challenges the validity, not the execution, of
his sentence, and because he has not shown application of the
saving clause, the Court lacks jurisdiction to consider his motion
as a § 2241 petition.

Taylor, 990 F.3d at 499.

Even construing

Movant’s filing as a § 2255 motion, however, the Court lacks
jurisdiction to entertain his arguments because his motion is
barred as second or successive.

Moreland, 813 F.3d at 322.

Defendant filed a § 2255 motion in 2019 also challenging his
October 2017 convictions.

(2019 Motion, ECF No. 1.)

The claims

Defendant raises in the instant Motion are different from the
claims raised in his prior motion.

(Compare id. with ECF No. 1.)

In this Motion, Defendant argues that his prior conviction for
unlawful possession of a controlled substance, in violation of
Tenn. Stat. Ann. § 39-17-417, should not have been used as a

Movant is vague about the new caselaw. Although he asserts
that new law applies retroactively, it is not clear, for example,
whether the law establishes new constitutional rules. Insofar as
Movant seeks § 2241 relief based on new legal developments that do
not fit within § 2244(b)’s narrow exceptions, his argument is
foreclosed by Jones v. Hendrix, 599 U.S. 465 (2023) (holding that
a prisoner may not evade the restrictions on filing second or
successive
habeas
petitions
based
on
a
“more
favorable
interpretation of statutory law adopted after . . . [movant’s]
initial § 2255 motion was resolved.”)
1

6

predicate offense to apply the career offender enhancement under
the U.S. Sentencing Guidelines.

(ECF No. 1 at 2.)

Defendant relies on United States v. Havis, 927 F.3d 382, 387
(6th Cir. 2019) (abrogated by regulation, as recognized in United
States v. Dorsey, 91 F.45th 453, 459 (6th Cir. 2024)), which held
that attempt crimes are not controlled substance offenses as
defined in § 4B1.2(b) of the U.S. Sentencing Guidelines and that
§ 39-17-417 cannot be a predicate offense increasing a defendant’s
offense level.
to

understand,

(Id. at 6-7.)
but

he

seems

Defendant’s arguments are difficult
to

argue

that

the

elements

of

§ 39-17-417 can be established in any of several alternative ways,
and that he pled guilty to a version of the crime that does not
have the intent required to constitute a predicate felony.

(Id.)

He relies on the Supreme Court’s holding in Mathis v. United
States, 579 U.S. 500, 503 (2016), which addresses how to apply the
definition of “violent felony” in the Armed Career Criminal Act,
18 U.S.C. § 924(e) (1984), when a defendant has been convicted
under

a

statute

that

lists

multiple,

alternative

means

of

satisfying its elements.
Those grounds were not raised in Movant’s 2019 Motion, which
contained only ineffective assistance of counsel claims.
2019 Motion.)

(See

Defendant does not argue that the new claims were

unripe when his 2019 Motion was filed.

The alleged sentencing

errors had occurred when Defendant filed his 2019 petition, and
7

the caselaw on which he currently relies was also available.

In

re Hill, 81 F.4th at 570 (holding that a claim was ripe when
defendant filed his original habeas motion because “the events
giving rise” to the claim had already occurred). Indeed, Defendant
relied on both Havis and Mathis in his 2019 Motion, arguing that
counsel was ineffective for failing to raise the arguments about
the career offender enhancement that he now raises himself.
Because

Defendant

has

brought

a

previous

§

2255

motion

challenging the same convictions he challenges now, and because
the instant claims were neither unripe nor unexhausted at that
time, the instant Motion is a second or successive motion that the
Court cannot review without permission from the Sixth Circuit.

In

re Hill, 81 F.4th at 569; Moreland, 813 F.3d at 322.
IV.

Conclusion

This Court lacks authority to decide Defendant’s second or
successive § 2255 motion because the Sixth Circuit Court of Appeals
has not approved its filing.
§ 2244(b)(3)(A).

28 U.S.C. § 2255(h); 28 U.S.C.

Under In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)

(per curiam), “when a second or successive petition for habeas
corpus relief or § 2255 motion is filed in the district court
without § 2244(b)(3) authorization from [the Sixth Circuit], the
district court shall transfer the document.”
F.3d at 325.

See Moreland, 813

Therefore, the Clerk is ORDERED to transfer this

second or successive motion to the United States Court of Appeals
8

for the Sixth Circuit.

The Clerk is directed to close this case

without entry of judgment.
IT IS SO ORDERED this 28th day of August, 2024.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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