Bailey v. Perdue

Filing 21

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 18 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: The Petitioner's 20 Objections are overruled. Accordingly, the petitioners 1 , 11 petition for writ of habeas corpus pursuant to 28 U .S.C. § 2241 is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 11/1/2013. (kac)(Copy to pro se petitioner (via cm/rrr)) (Additional attachment(s) added on 11/1/2013: # 1 Certified Mail Return Receipt) (kac).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER J. BAILEY,
Petitioner,
v.

Civil Action No. 5:13CV41
(STAMP)

R.A. PERDUE, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

On March 15, 2013, Christopher J. Bailey (“Bailey”) filed a
pro se1 petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241.

The petitioner challenges the validity of a sentence

imposed upon him in the United States District Court for the
Southern District of West Virginia, which followed a jury trial in
which the petitioner was found guilty of one count of kidnapping
his

wife

for

ransom,

reward,

or

otherwise,

and

willfully

transporting her in interstate commerce, in violation of 18 U.S.C.
§ 1201(a)(1), and one count of intentionally committing a crime of
violence and causing bodily injury to her, in violation of 18
U.S.C. §§ 2261(a)(2) and 2261(b).

The petitioner was sentenced to

life imprisonment for the kidnapping charge and twenty years

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

imprisonment for the intentionally committing a crime of violence
and causing bodily injury charge.
Following his sentencing, the petitioner appealed to the
United States Court of Appeals for the Fourth Circuit.
Circuit affirmed the district court.

The Fourth

A subsequent petition for a

writ of certiorari to the United States Supreme Court was also
denied.

He then filed a motion to recall the mandate in the Fourth

Circuit, which was denied.
Following the motion to recall, the petitioner filed a motion
under 28 U.S.C. § 2255, which was denied by the Southern District
of West Virginia.

A subsequent motion for a certificate of

appealability was denied as well and petitioner’s motion to proceed
on appeal in forma pauperis was denied thereafter.

The petitioner

appealed and the Fourth Circuit granted him in forma pauperis
status but dismissed the appeal in an unpublished per curiam
opinion.

In conjunction with that dismissal, the Fourth Circuit

also denied the petitioner a certificate of appealability.

The

petitioner then filed motions for rehearing and rehearing en banc,
both were denied.
The petitioner then filed the instant § 2241 petition, raising
four grounds for relief.

The petitioner contends that: (1) lead

defense counsel was inexperienced in criminal defense matters and
co-counsel “made no material or meaningful contribution” to his
defense; (2) counsel failed to request an independent mental

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competency exam for petitioner; (3)counsel failed to request a jury
instruction regarding the determination of consciousness of guilt;
and (4) counsel failed to communicate, pursue, and negotiate a plea
offer from the government. Further, the petitioner asserts that he
needs

appointed

counsel

to

help

him

with

claims

questioning

jurisdiction and a possible unconstitutional search and seizure
during the initial stage of the prosecution’s investigation.
This petition was referred to United States Magistrate Judge
James E. Seibert for initial review and report and recommendation
pursuant

to

Local

Rule

of

Prisoner

Litigation

Procedure

2.

Magistrate Judge Seibert entered a report recommending that the
petitioner’s § 2241 petition be denied and dismissed with prejudice
based upon his finding that a § 2241 petition is not available to
this petitioner as a vehicle by which to obtain the relief sought.
Further, the magistrate judge reported that even if the § 2241
relief was available through the savings clause of 18 U.S.C.
§

2255,

the

petitioner

cannot

satisfy

the

Jones

test

and,

therefore, is not entitled to the savings clause. In re Jones, 226
F.3d 328 (4th Cir. 2000).
The

petitioner

timely

filed

objections

reiterating

his

previous contentions but also asserting that his petition should
not be dismissed with prejudice because he should be allowed to refile a proper § 2255 petition.

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For the reasons set forth below, this Court finds that the
report and recommendation by the magistrate judge must be affirmed
and adopted in its entirety, and the petitioner’s § 2241 petition
must be denied and dismissed with prejudice.
II.

Legal Standard

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

Because the

petitioner filed objections to the report and recommendation, the
magistrate judge’s recommendation will be reviewed de novo.
III.

Discussion

The magistrate judge found that § 2241 is an improper vehicle
for the petitioner’s claims because the petitioner attacks the
validity of his sentence rather than the means of execution, and
such challenges must be brought pursuant to 28 U.S.C. § 2255.

The

“savings clause” in § 2255 permits certain claims to be brought
under § 2241.

The magistrate judge, however, reported that the

petitioner has failed to demonstrate that 28 U.S.C. § 2255 afforded
an inadequate or ineffective remedy.
not

clearly

assert

a

claim

under

Although the petitioner did
the

savings

clause

in

his

petition–only stating that he filed a § 2241 petition because “it
was so long ago since I have done a 2255 I felt a 2241 was my only
remedy”–the magistrate judge found that if he had, the petitioner
cannot rely upon it.

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Having

reviewed

the

magistrate

judge’s

report

and

recommendation de novo, this Court agrees that the petitioner
improperly challenges his sentence under § 2241 and that he has
failed to demonstrate that 28 U.S.C. § 2255 affords an inadequate
or ineffective remedy. A federal prisoner may seek relief pursuant
to 28 U.S.C. § 2241 when a petition pursuant to § 2255 is
“inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255; In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
However, the remedy afforded by § 2255 is not rendered inadequate
or ineffective merely because relief has become unavailable under
§ 2255 because of a limitation bar, the prohibition against
successive petitions, or a procedural bar due to failure to raise
the issue on direct appeal.

In re Vial, 115 F.3d at 1194 n.5

(citing Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)).
Rather, § 2255 is inadequate and ineffective to test the legality
of a conviction when:
(1) at the time of the 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 gate-keeping provisions of
§ 2255 because the new rule is not one of constitutional
law.
Jones, 226 F.3d 328.
In this case, the petitioner has failed to establish the
elements required by Jones.

The petitioner has not attempted to

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satisfy the Jones test but inapposite actually seems to concede in
his objections that § 2241 was not the proper vehicle for the
relief he seeks and thus he asks for a dismissal without prejudice.
As the magistrate judge observed, even without such a concession on
the petitioner’s part, kidnapping for ransom, reward, or otherwise,
and willfully transporting a person in interstate commerce, in
violation of 18 U.S.C. § 1201(a)(1), and intentionally committing
a crime of violence and causing bodily injury, in violation of 18
U.S.C. §§ 2261(a)(2) and 2261(b), both remain valid criminal
offenses.

Thus, the petitioner cannot meet the second element of

Jones and is foreclosed from making an argument under the savings
clause.
Accordingly, the petition is denied because (1) the petitioner
has made clear concessions that this is not a valid petition under
the savings clause and (2) even without those concessions, his
claims clearly do not fall within the test set forth by the Fourth
Circuit in Jones.
IV.
Having

reviewed

Conclusion

the

magistrate

judge’s

report

and

recommendation de novo, this Court hereby AFFIRMS and ADOPTS the
report and recommendation in its entirety and the petitioner’s
objections are hereby OVERRULED.

Accordingly, the petitioner’s

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is
DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that this civil

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action be DISMISSED and STRICKEN from the active docket of this
Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit,
he is ADVISED that he must file a notice of appeal with the Clerk
of this Court within sixty days after the date of the entry of this
judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

November 1, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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