Nice v. Ratledge

Filing 2

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 8/28/2017. (slt)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION SHAWN G. NICE, Petitioner, v. C. RATLEDGE, Respondent. ) ) ) ) ) ) ) Civil Action No. 7:17cv00169 By: Elizabeth K. Dillon United States District Judge MEMORANDUM OPINION Petitioner Shawn G. Nice, a federal inmate housed at the United States Penitentiary in Lee County, Virginia, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Nice alleges that his federal criminal sentence is unlawful under Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015). Upon review of the record, the court concludes that Nice’s claim for relief cannot proceed under § 2241 and, therefore, will dismiss this action without prejudice. Nice was convicted in the United States District Court for the Southern District of Florida of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). United States v. Nice, No. 0:09cr60285-KAM-1 (S.D. Fla. July 26, 2010). Nice appealed, and the United States Court of Appeals for the Eleventh Circuit affirmed his conviction and sentence. United States v. Nice, No. 10-13528 (11th Cir. Apr. 28, 2011). Thereafter, Nice filed three motions to vacate, set aside, or correct sentence pursuant 28 U.S.C. § 2255, all of which the district court denied. United States v. Nice, No. 0:09cr60285-KAM-1, Dkt. Nos. 68, 78, 79, 80, 90, and 91 (S.D. Fla. July 26, 2010). Nice now petitions this court pursuant to § 2241 for habeas relief pursuant to Johnson, which held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), violates the Constitution’s guarantee of due process. Nice challenges the legality of his federal sentence, and such claims must normally be raised on appeal or in a § 2255 motion in the sentencing court. In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). Section 2241 petitions generally challenge the way a sentence is executed. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Nice, in order to bring his current challenge under § 2241, would have to meet the requirements of the § 2255 savings clause and then meet the stringent standard mandated under In re Jones to establish that a § 2255 motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e); see In re Jones, 226 F.3d at 333-34 (finding that a challenge to a federal conviction is barred from review under § 2241 absent a showing that under a post-conviction change in the law, petitioner’s offense conduct is no longer criminal). The current petition fails to state facts that are sufficient for Nice to satisfy the savings clause and In re Jones standards. Because Johnson had no effect on the criminality of Nice’s offense conduct – possessing a firearm as a convicted felon – he cannot proceed with his claim under § 2241. Therefore, the court will dismiss this action without prejudice.1 1 The court declines to construe Nice’s petition as a § 2255 motion. First, § 2255 motions must be brought in the court which imposed the sentence. See 28 U.S.C. § 2255; see also Swain v. Pressley, 430 U.S. 372, 378 (1977). Second, Nice has already filed three § 2255 motions in the Southern District of Florida. See United States v. Nice, No. 0:09cr60285-KAM-1, Dkt. Nos. 68, 78, 79, 80, 90, and 91 (S.D. Fla. July 26, 2010). In order to file a successive § 2255 motion in the district court, Nice must receive pre-filing authorization from the United States Court of Appeals for the Eleventh Circuit. See § 2255(h). Because Nice has not demonstrated that the Court of Appeals has issued him pre-filing authorization to submit a second or successive § 2255 motion, the sentencing court has no jurisdiction to consider the merits of his § 2255 claims. Accordingly, the court does not find that transfer of a clearly successive § 2255 motion to the sentencing court furthers the interests of justice or judicial economy. Therefore, this court declines to construe his petition as a § 2255 motion and declines to transfer Nice’s petition. 2 An appropriate order will be entered. Entered: August 28, 2017. /s/ Elizabeth K. Dillon Elizabeth K. Dillon United States District Judge 3

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