Hill v. Warden

Filing 25

MEMORANDUM OPINION AND ORDER denying 21 MOTION by John Farelin Hill Requesting Plea Colloquy Transcripts to Support Additional Argument; overruling plaintiff's objections and adopting 19 Proposed Findings and Recommendations by Magistrate Judge; denying Plaintiff's 2 Petition under 28 U.S.C. § 2241 and DISMISSING this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/28/2021. (cc: plaintiff; counsel of record) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JOHN FARELIN HILL,
Plaintiff,
v.

Civil Action No: 1:20-00404

WARDEN, FCI MCDOWELL,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed
findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

The magistrate judge submitted his

proposed findings and recommendations (“PF&R”) on January 25,
2021.

In the PF&R, Magistrate Judge Tinsley recommended that the

court deny plaintiff’s petition for Writ of Habeas Corpus under
28 U.S.C. § 2241 and dismiss this matter for lack of
jurisdiction.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Tinsley’s
Findings and Recommendation.

The failure of any party to file

such objections constitutes a waiver of such party's right to a
de novo review by this court.

Snyder v. Ridenour, 889 F.2d 1363

(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).

Moreover,

this court need not conduct a de novo review when a party “makes

general and conclusory objections that do not direct the court to
a specific error in the magistrate’s proposed findings and
recommendations.”

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.

1982).
On February 5, 2021, plaintiff filed objections to the PF&R.
See ECF No. 20.

On February 19, 2021, plaintiff filed a “Motion

Requesting Leave to Submit Additional Authority to Grant 2241/And
to Request Plea Colloquy Transcripts to Support Additional
Argument.”

ECF No. 21.

The court has construed the latter

filing as part of plaintiff’s objections to the PF&R and has
conducted a de novo review of the record as to those objections.
See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”).

However, insofar as ECF No. 21 requests transcripts,

that motion is DENIED.
Hill is in federal custody at FCI McDowell, a BOP facility
in the Southern District of West Virginia.

He is serving a term

of imprisonment based upon the sentence he received in the
Western District of Michigan in 2016 for being a felon in
possession of firearms and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).

Hill seeks relief in this court

based on the decision of the United States Supreme Court in
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), which held
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that for a felon-in-possession offense the government must prove
a defendant knew he or she belonged to category of persons barred
from possessing firearms.

Magistrate Judge Tinsley concluded

that plaintiff’s challenge to his conviction should be brought in
the court of conviction via a motion under 28 U.S.C. § 2255.

The

PF&R acknowledged the § 2255 savings clause but concluded that
Hill was unable to show that § 2255 was inadequate or ineffective
to address his claims.
“Section 2241 allows federal prisoners to seek a writ of
habeas corpus in the district in which they are confined.
U.S.C. § 2241.

But only in limited circumstances.”

See

Jones v.

Zych, No. 15-7399, 2020 WL 2119889, *3 (4th Cir. Apr. 23, 2020).
28 U.S.C.A. § 2241 allows a federal prisoner to
seek a writ of habeas corpus. A habeas petition under
§ 2241 must, however, be filed in the district in which
the prisoner is confined. See id. § 2241(a). This
requirement caused a number of practical problems,
among which were difficulties in obtaining records and
taking evidence in a district far removed from the
district of conviction, and the large number of habeas
petitions filed in districts containing federal
correctional facilities. See United States v. Hayman,
342 U.S. 205, 212–14, 72 S. Ct. 263, 96 L. Ed. 232
(1952). These practical problems led Congress to enact
§ 2255, “which channels collateral attacks by federal
prisoners to the sentencing court (rather than to the
court in the district of confinement) so that they can
be addressed more efficiently.” Triestman v. United
States, 124 F.3d 361, 373 (2d Cir. 1997); see Hayman,
342 U.S. at 219, 72 S. Ct. 263. Section 2255 thus was
not intended to limit the rights of federal prisoners
to collaterally attack their convictions and sentences.
See Davis v. United States, 417 U.S. 333, 343, 94 S.
Ct. 2298, 41 L. Ed.2d 109 (1974) (noting that Ҥ 2255
was intended to afford federal prisoners a remedy
identical in scope to federal habeas corpus”); Hayman,
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342 U.S. at 219, 72 S. Ct. 263 (“Nowhere in the history
of Section 2255 do we find any purpose to impinge upon
prisoners' rights of collateral attack upon their
convictions.”). Indeed, when § 2255 proves “inadequate
or ineffective to test the legality of . . .
detention,” a federal prisoner may seek a writ of
habeas corpus pursuant to § 2241. 28 U.S.C.A. § 2255.
In re Jones, 226 F.3d 328, 332 (4th Cir. 2000).
Motions under 28 U.S.C. § 2255 are the exclusive remedy for
testing the validity of federal judgments and sentences unless
there is a showing that the remedy is inadequate or ineffective.
See Hahn v. Moseley, 931 F.3d 295, 300 (4th Cir. 2019)
(“Generally, defendants who are convicted in federal court must
pursue habeas relief from their convictions and sentences through
the procedures set out in 28 U.S.C. § 2255.”).

The remedy under

§ 2241 is not an additional, alternative or supplemental remedy
to that prescribed under § 2255.
“Nonetheless, § 2255 includes a ‘savings clause’ that
preserves the availability of § 2241 relief when § 2255 proves
‘inadequate or ineffective to test the legality of a [prisoner’s]
detention.’”

Hahn, 931 F.3d at 300 (quoting 28 U.S.C. §

2255(e)); see also Jones, 226 F.3d at 333 (“[W]hen § 2255 proves
`inadequate or ineffective to test the legality of . . .
detention,’ a federal prisoner may seek a writ of habeas corpus
pursuant to § 2241.”).

The clause is known as the “‘savings

clause’ as it arguably saves § 2255 from unconstitutionally

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suspending habeas corpus.”

Lester v. Flournoy, 909 F.3d 708, 711

(4th Cir. 2018).
The Fourth Circuit has held that:
§ 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.1
Jones, 226 F.3d at 333-34.

The plaintiff bears the burden of

showing the inadequacy or ineffectiveness of a § 2255 motion.
See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).

The fact

that relief under § 2255 is barred procedurally or by the
gatekeeping requirements of § 2255 does not render the remedy of
§ 2255 inadequate or ineffective.

See In re Jones, 226 F.3d at

332-33; Young v. Conley, 128 F. Supp.2d 354, 357 (S.D.W. Va.

The “gatekeeping” requirements provide that an individual may
only file a second or successive § 2255 motion if the claim
sought to be raised presents:
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(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable fact finder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h); Jones, 226 F.3d at 330.
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2001); see also Cradle v. United States, 290 F.3d 536, 538-39 (3d
Cir. 2002) (“It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.

Section 2255 is not

inadequate or ineffective merely because the sentencing court
does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.”) (citations
omitted).
In evaluating plaintiff’s petition, the court applies Fourth
Circuit procedural law and the substantive law of the court of
conviction, i.e., the United States Court of Appeals for the
Sixth Circuit.

See Hahn, 931 F.3d at 301 (“In evaluating

substantive claims under the savings clause, we look to the
substantive law of the circuit where a defendant was
convicted.”).
Magistrate Judge Tinsley recommended that plaintiff’s
petition be denied because he could not satisfy the second prong
of the savings clause test in that neither the Supreme Court nor
the United States Court of Appeals for the Sixth Circuit has
declared Rehaif to be retroactive on collateral review.
Therefore, the conduct for which plaintiff was convicted is still
illegal and being a felon in possession of a firearm is still a
valid criminal offense.

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Hill objects to the PF&R’s ultimate conclusion that his
claim is not cognizable in § 2241.

In so doing, he fails to

acknowledge that courts within the Sixth Circuit have concluded
that Rehaif did not change the substantive law such that the
conduct for which Hill was convicted is no longer illegal.

See

Parrish v. Young, Civil Action No. 5:20-00710, 2021 WL 3504643,
at *4 (S.D.W. Va. July 13, 2021) (“Additionally, Rehaif did not
change substantive law.

Courts within the Fourth and Sixth

Circuits have held that Rehaif did not change substantive law if
the conduct for which the petitioner was convicted is still
illegal and being a felon in possession of a firearm is still a
valid criminal offense.”), proposed findings and recommendation
adopted by 2021 WL 3503228 (S.D.W. Va. Aug. 9, 2021); Mann v.
Young, CIVIL ACTION NO. 5:19-cv-00548, 2020 WL 5806726, at *1
(S.D.W. Va. Sept. 29, 2020) (“District courts within the Sixth
Circuit, however, have concluded that Rehaif does not apply
retroactively on collateral review.”); Butcher v. Williams, Case
No. 5:20CV541, 2020 WL 8642100, at *2 (N.D. Ohio Sept. 17, 2020)
(“Numerous federal district courts within the Sixth Circuit, and
circuit courts of appeals outside of the Sixth Circuit, have held
that Rehaif does not retroactively apply to cases on collateral
review.”).

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Based on the foregoing, and the fact that Hill has not shown
that § 2255 is an inadequate or ineffective vehicle for obtaining
the review he seeks, this action should be dismissed.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Tinsley, the court hereby OVERRULES plaintiff’s
objections and adopts the findings and recommendations contained
therein.

Accordingly, the court hereby DENIES plaintiff’s

petition under 28 U.S.C. § 2241 and DISMISSES this case from the
court’s active docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff, pro se, and counsel of record.
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IT IS SO ORDERED this 28th day of September, 2021.

David A. Faber
Senior United States District Judge

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