Porter v. Wilson

Filing 4

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 1/31/14. Copy sent: Yes(tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

LORENZA PORTER,

Petitioner,
Civil Action No. 3:13CV737-HEH

v.

ERIC WILSON,

Respondent.
MEMORANDUM OPINION

(Dismissing 28 U.S.C. § 2241 Petition for Want of Jurisdiction)
Lorenza Porter, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241

petition. This Court convicted Porter of conspiracy to possess with the intent to distribute
and to distribute cocaine, cocaine base, and heroin; possession with the intent to
distribute heroin; distribution of cocaine base and heroin; money laundering; investment

of illicit drug profits; and tax evasion. See United States v. Porter, No. 96-4447, 1997
WL 269343, at *1 (4th Cir. May 22, 1997) (citation omitted). The Court sentenced
Porter to 262 months of imprisonment. Id. On April 28, 2000, the Court denied a 28
U.S.C. § 2255 filed by Porter. In his § 2241 Petition, Porter contends that his sentence is
That statute provides, in pertinent part:

(c) The writ of habeas corpus shall not extend to a prisoner unless—
(1) He is in custody under or by color of the authority of the United States or
is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of the
United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the
United States....

28 U.S.C. §2241(c)(lH3).

unconstitutional in light of the Supreme Court's decision in in Alleyne v. United States,

133 S. Ct. 2151 (2013).2 For reasons setforth below, the § 2241 Petition will be
DISMISSED for want of jurisdiction.

A.

Motions under 28 U.S.C. § 2255 Compared to Petitions under 28
U.S.C.§ 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 must be filed with the
sentencing court. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v.
Warden, Fed. Del 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

2InAlleyne, the Supreme Court addressed a defendant's mandatory minimum sentence of
seven years for brandishing a firearm under 18 U.S.C. § 924(c)(l)(A)(ii). Alleyne, 133 S. Ct.
2155-56. The Supreme Court held that, other than prior convictions, "facts that increase
[statutory] mandatory minimum sentences must be submitted to the jury." Id. at 2163.

3"This 'inadequate and ineffective' exception is known as the 'savings clause' to [the]
limitations imposed by § 2255." Wilson v. Wilson,No. I:llcv645 (TSE/TCB), 2012
WL 1245671, at *3 (E.D. Va. Apr. 12, 2012) (quoting In re Jones, 226 F.3d 328, 333 (4th Cir.
2000)).

provision or because an individual is procedurally barred from filing a § 2255 motion."
Id. (citations omitted).

The Fourth Circuit has stressed that an inmate may proceed under § 2241 to

challenge his 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 "controlling test," id, in the Fourth Circuit is as follows:

[Section] 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 law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added). The Fourth Circuit

formulated this test to provide a remedy for the "fundamental defect presented by a
situation in which an individual is incarcerated for conduct that is not criminal but,

through no fault of his [or her] own, [he or she] has no source of redress." Id. at 333 n.3
(emphasis added).

B.

Analysis of Porter's 28 U.S.C. § 2241 Petition

Porter fails to satisfy the second prong of In re Jones. See id. at 334. Specifically,
Porter fails to demonstrate that "subsequent to [his] direct appeal and [his] first § 2255
motion, the substantive law changed such that the conduct of which [he] was convicted is

deemednot to be criminal." Id. (emphasis added). The conduct of which Porter stands

convicted remains criminal.4 See Alsop v. Chandler, — F. App'x —, No. 13-10778,
2014 WL 68913, at *1 (5th Cir. Jan. 9, 2014) (concluding the decision inAlleyne fails to

provide a basis for filing §2241 petition). Accordingly, the Court will dismiss Porter's
28 U.S.C. § 2241 Petition for want ofjurisdiction.
An appropriate Order shall issue.

M^L

/s/

HENRY E.HUDSON

Date: 3^34.20/H

UNITED STATES DISTRICT JUDGE

Richmond, Virginia

4As previously noted, Porter was convicted of the following crimes: conspiracy to
possess with the intent to distribute and to distribute cocaine, cocaine base, and heroin;
possession withthe intent to distribute heroin; distribution of cocaine base and heroin; money
laundering; investment of illicit drug profits; and tax evasion.