Toohey v. Wilson
Filing
7
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge M. Hannah Lauck on 6/26/2018. (sbea, )
re
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
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JUN 26 2013
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CLERK, U.S. Ol'.:,TH!CT COURl
RICHr.:c·m. VA
JEFFREY GLENN TOOHEY,
Petitioner,
v.
Civil Action No. 3:17CV442
ERIC WILSON,
Respondent.
MEMORANDUM OPINION
Jeffrey Glenn Toohey, a federal inmate proceedingpro se, submitted a 28 U.S.C. § 2241
Petition. ("§ 2241 Petition," ECF No. 1.) 1 For the reasons set forth below, the§ 2241 Petition
will be dismissed for want of jurisdiction.
I. Procedural History and Summary of Toohey's Claim
In the United States District Court for the Eastern District of North Carolina ("Sentencing
Court"), Toohey pied guilty to one count of aiding and abetting identity theft, one count of aiding
and abetting access device fraud, two counts of aggravated identity theft, one count of bank
fraud, and one count of conspiracy to present false claims. See United States v. Toohey, 514 F.
App'x 334,335 (4th Cir. 2013). The Sentencing Court sentenced Toohey to 125 months of
1
The 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.A. § 2241(c)(l)-(3).
imprisonment. See id. On March 15, 2013, the United States Court of Appeals for the Fourth
Circuit dismissed Toohey's appeal of his sentence. Id. On April 15, 2013, the Supreme Court of
the United States denied Toohey's petition for a writ of certiorari. Toohey v. United States, 569
U.S. 941 (2013).
In January 2015, Toohey filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence("§ 2255 Motion") with the Sentencing Court. See Toohey v. United States,
Nos. 4:12-CR-46-BR, 4:15-CV-3-BR, 2015 WL 12697876, at *1 (E.D.N.C. June 12, 2015).
On June 12, 2015, the Sentencing Court dismissed Toohey's § 2255 Motion as untimely. Id. at
*3.
In his § 2241 Petition, Toohey challenges his convictions in the Sentencing Court. (See
§ 2241 Pet. 9-13.) 2 Specifically, Toohey raises the following claim for relief:
Claim One:
"A lack of counsel caused a procedural default in [Toohey's]
initial-review collateral proceeding (28 U.S.C. § 2255) resulting in
[Toohey's] substantial claims of pretrial, trial, sentencing and
appellate ineffective counsel to be foregone, therefore [Toohey's]
substantial ineffectiveness claims have never been addressed."
(§ 2241 Pet. 10.)
Toohey then provides a lengthy list of instances where he believes counsel was
ineffective throughout his criminal proceedings. (See id. 10-13.)
II. 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 such motion must be filed with the
sentencing court. See Pack v. Yusujf, 218 F.3d 448,451 (5th Cir. 2000) (quoting Cox v. Warden,
Fed Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)). A federal inmate may not proceed under
2
The Court employs the pagination assigned to Toohey's submissions by the
docketing system and corrects the spelling, punctuation, and capitalization in the quotations from
Toohey's submissions.
2
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).4
The Fourth Circuit has stressed that an inmate may proceed under § 2241 to challenge his
or her 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.
3
"This 'inadequate and ineffective' exception is known as the 'savings clause' to [the]
limitations imposed by§ 2255." Wilson v. Wilson, No. 1:1 lcv645 (TSEffCB), 2012
WL 1245671, at *3 (E.D. Va. Apr. 12, 2012) (quoting In re Jones, 226 F.3d 328,333 (4th Cir.
2000)).
4
Toohey cannot avoid the bar on filing successive 28 U.S.C. § 2255 motions by
suggesting he is filing a petition for a writ of habeas corpus under 28 U.S.C. § 2241. "Call it a
motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis,
audit querela ... , the name makes no difference. It is substance that controls." Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004) (citing Thurman v. Gramley, 97 F.3d 185, 18687 (7th Cir. 1996)).
3
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added). 5 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
own, has no source ofredress." Id at 333 n.3 (emphasis added).
III. Analysis of Toobey's 28 U.S.C. § 2241 Petition
Toohey fails to satisfy the second prong of In re Jones. See In re Jones, 226 F.3d 328,
334 (4th Cir. 2000). Specifically, Toohey 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
Toohey stands convicted, aiding and abetting identity theft, aiding and abetting access device
fraud, aggravated identity theft, bank fraud, and, conspiracy to present false claims, are all still
criminal. Because Toohey fails to demonstrate that the conduct of which he stands convicted is
not criminal, he cannot proceed by § 2241.
In a supplement entitled, "MOTION TO AMEND AND EXPEDITE" ("Motion to
Amend," ECF No. 6), Toohey argues that the Court should allow his§ 2241 Petition to go
forward pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Toohey contends that the United
States Supreme Court, in Martinez, "recognized a new cause for overcoming procedural default,"
(Mot. Amend. 5), and he asserts that he "raised several clear examples of his attorney's
ineffective assistance that prejudiced him with a longer sentence." (Id. at 6.) The Court fails to
5
The Court notes that in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the
Fourth Circuit recognized that In re Jones may, in some instances, allow an inmate to challenge
serious sentencing errors in a § 2241 petition. Wheeler, 886 F.3d at 427-30. Nevertheless, the
Fourth Circuit affirmed that "[t]here is no doubt that Jones is still good law in this circuit," and
as applied to Toohey, requires a substantive change in the law that would make his conduct no
longer criminal. Id at 427.
4
discern, and Toohey fails to explain, how Martinez has any application in this instance. 6
Accordingly, Toohey's Motion to Amend (ECF No. 6) will be DENIED as FUTILE. Because
Toohey fails to demonstrate that the conduct of which he stands convicted is not criminal, he
cannot proceed by § 2241.
IV. Conclusion
For the foregoing reasons, Toohey's § 2241 Petition (ECF No. 1) will be DISMISSED
WITHOUT PREJUDICE for want of jurisdiction.
The Clerk is DIRECTED to send a copy of this Memorandum Opinion to Toohey.
An appropriate Order shall issue.
M.Hannah~~
JUN 2 6 2018
Date:
Richmond, Virginia
United State0strict Judge
6
Toohey is a federal prisoner. Martinez and its progeny "deal with state prisoners'
ability to bring ineffective assistance of counsel claims, despite being procedurally barred. They
do not address the ability of federal prisoners to use § 2241 to bring ineffective assistance of
counsel claims." Jackman v. Shartle, 535 F. App'x 87, 89 n.5 (3d Cir. 2013) (emphasis added);
see Garcon v. Cruz, No. 6:14---cv-72-RMG, 2014 WL 819467, at *5 (D.S.C. Feb. 28, 2014)
(citation omitted) (explaining that Martinez "is inapplicable to federal convictions"), aff'd 581 F.
App'x 193 (4th Cir. 2014).
5
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