United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. 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). The Court has screened the Petition
(Doc. 1) under Rule 4 of the Rules Governing Habeas Corpus
Cases, foll. 28 U.S.C. § 2254, and dismisses this action
for the following reasons.
pled guilty to conspiracy to possess stolen firearms (Count
One), possession of stolen firearms (Count Two), and two
counts of possession of firearms by a convicted felon (Counts
Four and Seven), and was sentenced to a 327-month term of
imprisonment in the U.S. District Court for the Middle
District of North Carolina on September 2, 2010. See
United States v. Bowers, No. 1:09-cr-00240-TDS, Doc. 141
(M.D. N.C. Sept. 2, 2010). The district court's judgment
was affirmed by the Fourth Circuit Court of Appeals on June
9, 2011. Id. at Doc. 183.
January 6, 2012, Petitioner filed a motion pursuant to 28
U.S.C. § 2255, arguing that his prior North Carolina
convictions no longer qualified as felonies pursuant to
United States v. Simmons, 649 F.3d 237, 241-47 (4th
Cir. 2011) (en banc). Id. at Doc. 202. The district
court granted the motion, vacated Counts 4 and 7, and on
March 21, 2013, resentenced Petitioner on the remaining two
counts to a 180-month term of imprisonment. Id. at
Docs. 247, 283. Petitioner appealed, and the Fourth Circuit
affirmed, finding that the district court's explicit
factual finding at the original sentencing hearing that the
Norinco was stolen as part of the conspiracy applied at
resentencing and Petitioner was not entitled to consideration
of any additional evidence on the issue. Id. at Doc.
330, at 4-5 (finding that “[t]he district court
considered and rejected Bowers' objection to the
inclusion of the Norinco in the offense conduct at the
original sentencing hearing, and we affirmed the district
court's ruling on appeal. Bowers, 434 Fed.Appx.
at 267-68. Thus, Bowers' objection falls within the
‘law of the case doctrine.'”).
filed another § 2255 motion on February 20, 2014, which
was dismissed without prejudice to Petitioner refiling it on
the proper form. Id. at Docs. 336, 342. Petitioner
refiled his § 2255 motion on July 2, 2014, challenging
the court's use of his possession of a Norinco rifle to
enhance his sentence and arguing that the rifle was not
included in the indictment. Id. at Doc. 345. The
motion was denied on June 1, 2016, and the court found that
the rifle could properly be used to calculate his offense
level without it being charged in his indictment.
Id. at Docs. 413, 419. Petitioner appealed, and the
Fourth Circuit denied a certificate of appealability on
September 15, 2016. Id. at Doc. 431.
filed the instant § 2241 Petition, challenging the
validity of his sentence as imposed. Petitioner claims that
it was enhanced “through impermissible Sentencing
Factors the inclusion of a weapon that was not a part of the
factors in the overall case and should not have been
included.” (Doc. 1, at 2.) Petitioner claims
“[t]here was no proof that the weapon was stolen. It
was erroneously included as part of the guideline
calculation, included in the presentencing report and applied
at sentencing.” Id. Petitioner seeks
resentencing based on evidence and testimony that the
enhancement related to the Norinco rifle should not apply.
federal prisoner seeking release from allegedly illegal
confinement may file a motion to “vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). A
motion under § 2255 must be filed in the district where
the petitioner was convicted and sentence imposed. Sines
v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010). This
remedy is normally the only means to challenge a federal
conviction after the direct appeal is resolved. Brace v.
United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
However, under the “savings clause” in §
2255(e), a federal prisoner may file an application for
habeas corpus under 28 U.S.C. § 2241 in the district of
confinement if the petitioner demonstrates that the remedy
provided by § 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
has not shown a compelling reason that might justify the use
of § 2241 to test the legality of his confinement.
“Only in rare instances will § 2255 fail as an
adequate or effective remedy to challenge a conviction or the
sentence imposed.” Sines, 609 F.3d at 1073. A
petitioner does not present one of these rare instances
“simply by asserting his ability to file a § 2255
motion is barred by timing or filing restrictions.”
Crawford v. United States, 650 Fed.Appx. 573, 575
(10th Cir. 2016) (unpublished) (citing Sines, 609
F.3d at 1073; Haynes v. Maye, 529 Fed.Appx. 907, 910
(10th Cir. 2013) (unpublished) (noting fact that § 2255
motion is time-barred doesn't render § 2255 remedy
inadequate or ineffective); Garris v. Lindsay, 794
F.2d 722, 727 (D.C. Cir. 1986) (“It is the inefficacy
of the [§ 2255] remedy, not a personal inability to
utilize it, that is determinative, and appellant's
difficulty here is simply that his circumstances preclude him
from invoking it.”).
considered the Petition and the nature of the claim
presented, the Court dismisses this matter. Petitioner may
seek authorization in the U.S. Court of Appeals for the
Fourth Circuit to pursue a second or successive application
for relief under 28 U.S.C. § 2255 in the district of his
conviction. See 28 U.S.C. 2255(h). Having failed to
establish that the remedy provided in § 2255 was
inadequate or ineffective, Petitioner may not proceed under
§ 2241. Accordingly, IT IS THEREFORE ORDERED BY
THE COURT that Petitioner's motion to proceed
in forma pauperis (Doc. 2) is
IS FURTHER ORDERED that Petitioner's motion
seeking discovery, an evidentiary hearing, and appointment of
counsel (Doc. 4) is denied.
IS FURTHER ORDERED that the Petition is