United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
matter is a petition for habeas corpus filed by Petitioner as
an “Original Writ of Habeas Corpus.” (Doc. 1.)
Petitioner, a prisoner in federal custody at USP-Leavenworth,
proceeds pro se. The Court grants Petitioner's Motion for
Leave to Proceed In Forma Pauperis (Doc. 2) and Motion for
Leave to Supplement Exhibits (Doc. 3). Petitioner challenges
his designation as a career offender. The Court has screened
his Petition under Rule 4 of the Rules Governing Habeas
Corpus Cases, foll. 28 U.S.C. § 2254, and dismisses this
action without prejudice for lack of statutory jurisdiction.
pleaded guilty to three crimes in Tennessee state court,
served his sentences, and was released from state custody in
1998. In re Marcus DeAngelo Lee a.k.a. Marcus DeAngelo
Jones, No. 17-6038, Doc. 10-2 (6th Cir. Jan. 17, 2018)
(citing State v. Lee, No. W2016-00107-CCA-R3-CD,
2017 WL 416292, at *1-2 (Tenn. Crim. App. Jan. 31, 2017)).
April 26, 2000, Petitioner was found guilty by a jury in the
Western District of Missouri of four counts of distributing,
and possession with the intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) and one count of
conspiracy to distribute and possess with intent to
distribute cocaine base in violation of 21 U.S.C. § 846.
Petitioner was sentenced to a 327-month term of imprisonment,
to be followed by five years of supervised release.
United States v. Jones alkla Lee, No.
99-cr-4041-C-SOW (W.D. Mo.). The decision was affirmed on
appeal. United States v. Jones, 275 F.3d 673 (8th
Cir. 2001). Petitioner's many efforts to collaterally
attack these convictions and sentence were unsuccessful.
See, e.g., Jones v. United States, No. 02-cv-4123
(W.D. Mo. Oct. 10, 2002) (denying relief under § 2255);
Jones v. United States, No. 03-1756 (8th Cir. July
24, 2003) (denying certificate of appealability); Jones
v. United States, No. 04-3837 (8th Cir. July 6, 2005)
(denying authorization to file a successive motion under
§ 2255). In 2013, the Sixth Circuit denied Petitioner
relief from these convictions and sentence under § 2241.
Jones v. Castillo, No. 11-6072 (6th Cir. May 31,
separate proceeding, Petitioner was convicted following a
jury trial in the Western District of Missouri of being a
felon in possession of a firearm, knowingly making a false
statement to acquire a firearm, and unlawful possession of a
firearm. On November 2, 2000, Petitioner was sentenced as an
armed career criminal to a 327-month term of imprisonment,
followed by five years of supervised release, to run
concurrently with the sentence imposed in No. 99-cr-4041.
United States v. Jones alkla Lee, No.
00-cr-04010-C-SOW (W.D. Mo.). The decision was affirmed on
appeal. United States v. Jones, 266 F.3d 804 (8th
Cir. 2001). Petitioner filed a § 2255 motion alleging
ineffective assistance of counsel, as a result of which one
of his convictions of being a felon in possession of a
firearm was vacated and a previously-imposed special
assessment was reduced. United States v. Jones, 403
F.3d 604 (8th Cir. 2005). The remainder of his sentence,
including the aggregate 327-month term of imprisonment,
remained unchanged. The District Court corrected
Petitioner's sentence, which was upheld on appeal.
United States v. Jones, 185 Fed.Appx. 541 (8th Cir.
2006). Petitioner's petition for authorization to file a
successive § 2255 motion was denied. Jones v. United
States, No. 09-2442 (8th Cir. July 20, 2009). In 2012,
the Sixth Circuit denied Petitioner relief under § 2241.
Jones v. Castillo, 489 Fed.Appx. 864 (6th Cir.
has filed numerous additional petitions under § 2255 and
for leave to file successive motions under § 2255.
See, e.g., Jones v. United States, No. 06-4015 (8th
Cir. Dec. 6, 2006) (request to file a successive § 2255
denied June 19, 2007); Jones v. United States, No.
2:07-CV-4142-SOW (W.D. Mo.) (dismissed for failure to obtain
permission on Jan. 31, 2008); Jones v. United
States, No.2:12-cv-04121-SOW (W.D. Mo.); see also
Jones v. United States, Nos. 15-2045, 16-1250, 17-3022
and 17-4137 (W.D. Mo.).
has likewise filed multiple petitions under § 2241.
See Jones v. Stephens, 2015 WL 6018392 (W.D. Tenn.
Oct. 15, 2015) (noting that Petitioner had filed four
previous petitions under § 2241 before that court and
the United States District Court for the Southern District of
Illinois, and citing Jones v. Revell, No.
05-467-JPG, 2005 WL 3481543 (S.D. Ill.Dec. 20, 2005)
(dismissing § 2241 petition as a successive §
2255); Jones v. Castillo, 2:09-cv-02066-STA-tmp
(W.D. Tenn.); Jones v. Castillo, No.
2:09-cv-02455-STA-tmp (W.D. Tenn.); Jones v.
Castillo, No. 2:10-2570-STA-dkv (W.D. Tenn. July 15,
2011) (finding petition without merit where Petitioner
alleged, among other claims, that his sentence as a career
criminal is invalid and in excess of the statutory maximum in
light of intervening, retroactive Supreme Court decisions),
affirmed Jones v. Castillo, No. 11-6072 (6th Cir.
May 31, 2013)); see also Jones v. Stephens, No.
15-6198 (6th Cir. Sept. 9, 2016) (affirming denial of §
alleges that on April 26, 2017, the Criminal Court of Shelby
County, Tennessee, vacated five of his prior convictions and
that three other convictions were held invalid (although not
vacated). See Doc. 1-1, at 13-25. Petitioner then
filed a new § 2255 in No. 17-cv-4137 in the Western
District of Missouri. The District Court denied relief on
July 28, 2017, and the Eighth Circuit affirmed. See
United States v. Jones, No. 17-3022 (8th Cir. 2018).
April 26, 2018, Petitioner filed the instant Petition, asking
the Court to release Petitioner from custody because the
judgment confining him is “void for want of
jurisdiction on an unconstitutional statute, or in excess of
that authorized by law.” Petitioner argues that his
continued incarceration on the current 327-month sentence
under the “unconstitutional 18 U.S.C. §
924(e)(2)(B)'s residual clause
(“ACCA”)” represents a miscarriage of
April 27, 2018, Petitioner filed a petition for permission to
file a successive habeas petition in the Eighth Circuit Court
of Appeals. Jones v. United States, No. 18-1904 (8th
styles his Petition as an “Original Writ of Habeas
Corpus” and asks the Court to “not recharacterize
his motion but rule on the petition through the forum and
remedy that is available under common law as labeled in the
caption.” (Doc. 1, at 8.) Petitioner argues that
because his continued incarceration is based on a void
sentence imposed based on an unconstitutional statute, his
claim should not be characterized as a statutory § 2255,
§ 2255(e) or § 2241 motion. However, “it is
the substance of the pleading, not its title that determines
whether it is a second or successive petition for habeas
relief.” McKnight v. Dinwiddie, 362 Fed.Appx.
900, 903 (10th Cir. 2010) (unpublished) (citing Gonzalez
v. Crosby, 545 U.S. 524, 531-32 (2005)); see also
McClain v. United States Dept. of Justice, 936 F.Supp.
505, 507 (N.D. Ill. 1996) (the substance of a petition rather
than its title determines whether it is governed by §
2241 or § 2255); United States v. Jacobs, No.
01-cr-80771, 2008 WL 1901233, at *1 (E.D. Mich. April 25,
2006) (although title of motion suggests relief is sought
through a writ of mandamus, court looks to substance to
determine whether it is a motion under § 2255).
allegation that there is no federal jurisdiction over the
acts alleged to have been committed and therefore a lack of
subject matter jurisdiction, may only be brought through
§ 2255. United States v. Rogers, 205 Fed.Appx.
708, 710 (10th Cir. 2006) (unpublished) (citing 28 U.S.C.
§ 2255-“A prisoner in custody under sentence of a
court established by Act of Congress claiming the right to be
released upon the ground that . . . the court was without
jurisdiction to impose such sentence . . . may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.”). Allegations that a judgment is
rendered void attack the conviction and cannot be addressed
under § 2241. Twitty v. Wiley, 336 Fed.Appx.
768, 769 (10th Cir. 2009) (unpublished) (citing Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A
petitioner under 28 U.S.C. § 2241 attacks the execution
of a sentence rather than its validity . . . .”));
see also ...