Reyes v. Kirby

Filing 7

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 5/21/14. Copy sent: Yes(tdai, ) Modified text on 5/22/2014 (tdai, ).

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

JAMAL REYES,
Petitioner,
Civil Action No. 3:14CV209-HEH

v.

WARDEN KIRBY,

Respondent.
MEMORANDUM OPINION

(Dismissing 28 U.S.C. § 2241 Petition For Lack Of Jurisdiction)

Jamal Reyes, a federal inmate proceeding pro se, filed a 28 U.S.C. §2241!
petition with the United States District Court for the Western District of Pennsylvania.

That Court transferred the action to this Court.2 In his § 2241 Petition, Reyes contends

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)(l)-(3).
On April 21, 2006, the Court sentenced Reyes to 175 months of imprisonment. By
Memorandum Opinion and Order entered on February 12, 2009, the Court denied a 28 U.S.C.
§ 2255 motion filed by Reyes. The Antiterrorism and Effective Death Penalty Act of 1996
restricted the jurisdiction of the district courts to hear second or successive applications for
federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences
by establishing a "'gatekeeping' mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996).
Specifically, "[bjefore a second or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). This

that the Court incorrectly sentenced him as a career offender. For the reasons set forth

below, the action will be dismissed for want ofjurisdiction.
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 Packv. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v.
Warden, Fed. Del Or., 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

provision or because an individual is procedurally barred from filing a § 2255 motion."
Id. (citations omitted).
Court has not received authorization from the United States Court of Appeals for the Fourth
Circuit to enter any motion under 28 U.S.C. § 2255 from Reyes.
"This 'inadequate and ineffective' exception is known as the 'savings clause' to [the]
limitations imposed by § 2255." Wilson v. Wilson, No. 1:1lcv645 (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)).

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 Reyes's 28 U.S.C. § 2241 Petition

Reyes fails to satisfy the second prong ofIn re Jones. See id. at 334. Specifically,
Reyes 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

deemed not to be criminal." Id. (emphasis added). The conduct of which Reyes stands
convicted, possession of heroin with intent to distribute, remains a crime. Moreover,

"Fourth Circuit precedent has ... not extended the reach of the savings clause to those

petitioners challenging only their sentence." Poole, 531 F.3d at 267 n.7 (citing In re

Jones, 226 F.3dat 333-34); Farrow v. Revell, 541 F. App'x 327, 328 (4th Cir. 2013)
(citation omitted). Accordingly, the Court will dismiss Reyes's 28 U.S.C. § 2241 Petition
for want ofjurisdiction.
An appropriate Order shall issue.

IX*

Is!

HENRY E. HUDSON

UNITED STATES DISTRICT JUDGE

Richmond, Virginia