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Gadson v. English

United States District Court, D. Kansas

August 19, 2019

NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.



         This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner filed his petition in the Western District of Missouri, and it was transferred to this Court on July 26, 2019, because Petitioner is in federal custody at USP-Leavenworth. The Court has screened his Petition (Doc. 1) 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.


         Petitioner pleaded guilty to one count of being a felon in possession of a firearm, and was sentenced on January 26, 2016, in the Western District of Missouri to a 120-month term of imprisonment. United States v. Gadson, No. 4:14-cr-00078-RK-1 (W.D. Mo.), at Doc. 104. The Eighth Circuit Court of Appeals affirmed the judgment. Id. at Docs. 121, 122; see also United States v. Gadson, 670 Fed.Appx. 907, 908-09 (8th Cir. 2016) (affirming denial of motion to suppress).

         On July 24, 2017, Petitioner filed a § 2255 motion, alleging ineffective assistance of counsel and challenging the waiver in his plea agreement. Gadson, No. 4:14-cr-00078-RK-1, at Doc. 126. On November 28, 2017, the district court denied the motion and declined to issue a certificate of appealability. Id. at Doc. 127.

         In Petitioner's current § 2241 Petition, he challenges the validity of his sentence as imposed. Petitioner claims actual innocence based on a new decision narrowing the felon-in-possession statute, citing Rehaif v. United States, 139 S.Ct. 2191 (2019). Petitioner also alleges that the remedy under 28 U.S.C. § 2255 is inadequate or ineffective to challenge his conviction or sentence because the remedy is time-barred. (Doc. 1, at 5.)

         Petitioner also filed a “Motion for the Court to Take Judicial Notice of Petitioner's Claim Not Being a 28 U.S.C. 2241 as Filed, But Docketed as a 28 U.S.C. 2255” (Doc. 5). Petitioner argues that prior to the transfer of his case to this Court, his Petition was “documented as a 28 U.S.C. 2255.” Petitioner attaches a form letter from the clerk that has spaces for the clerk to check whether the case is a petition for habeas corpus, a civil rights complaint, or a § 2255 motion. The clerk placed an “XX” by the line indicating the case was a petition for habeas corpus. Petitioner's motion misstates the docketing of his Petition, and is otherwise irrelevant to the Court's ruling. Therefore, the motion is denied.


         The Court must first determine whether § 2241 was the proper vehicle to bring Petitioner's claims. Because “that issue impacts the court's statutory jurisdiction, it is a threshold matter.” Sandlain v. English, 2017 WL 4479370 (10th Cir. Oct. 5, 2017) (unpublished) (finding that whether Mathis is retroactive goes to the merits and the court must first decide whether § 2241 is the proper vehicle to bring the claim) (citing Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013)).

         A 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). Generally, the motion remedy under 28 U.S.C. § 2255 provides “the only means to challenge the validity of a federal conviction following the conclusion of direct appeal.” Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016), cert. denied sub nom. Hale v. Julian, 137 S.Ct. 641 (2017). 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. § 2255(e).

         Petitioner seeks to rely on the Supreme Court's decision in Rehaif, which he acknowledges is an intervening judicial interpretation of a statute, and not a new rule of constitutional law. When a petitioner is denied relief on his first motion under § 2255, he cannot file a second § 2255 motion unless he can point to either “newly discovered evidence” or “a new rule of constitutional law, ” as those terms are defined in § 2255(h). Haskell v. Daniels, 510 Fed.Appx. 742, 744 (10th Cir. 2013) (unpublished) (citing Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)). Preclusion from bringing a second motion under § 2255(h) does not establish that the remedy in § 2255 is inadequate or ineffective. Changes in relevant law were anticipated by Congress and are grounds for successive collateral review only under the carefully-circumscribed conditions set forth in § 2255(h).

         The Tenth Circuit has rejected an argument that the “current inability to assert the claims in a successive § 2255 motion-due to the one-year time-bar and the restrictions identified in § 2255(h)-demonstrates that the § 2255 remedial regime is inadequate and ineffective to test the legality of his detention.” Jones v. Goetz, No. 17-1256, 2017 WL 4534760, at *5 (10th Cir. 2017) (unpublished) (citations omitted); see also Brown v. Berkebile, 572 Fed.Appx. 605, 608 (10th Cir. 2014) (unpublished) (finding that petitioner has not attempted to bring a second § 2255 motion, and even if he were precluded from doing so under § 2255(h), that “does not establish the remedy in § 2255 is inadequate”) (citing Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999) and Prost, 636 F.3d at 586). If § 2255 could be deemed “inadequate or ineffective” “any time a petitioner is barred from raising a meritorious second or successive challenge to his conviction-subsection (h) would become a nullity, a ‘meaningless gesture.'” Prost, 636 F.3d at 586; see also Hale, 829 F.3d at 1174 (“Because Mr. Hale cannot satisfy § 2255(h), he cannot, under Prost, satisfy § 2255(e), and § 2241 review must be denied.”).

         The AEDPA “did not provide a remedy for second or successive § 2255 motions based on intervening judicial interpretations of statutes.” Abernathy v. Wandes, 713 F.3d 538, 547 (10th Cir. 2013), cert. denied 134 S.Ct. 1874 (2014). However, prisoners who are barred from bringing second or successive § 2255 motions may still be able to petition for habeas relief under the savings clause in § 2255(e). Id.

         However, § 2255 has been found to be “inadequate or ineffective” only in “extremely limited circumstances.” Id. (citations omitted). “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) ...

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