United States District Court, D. Kansas
JERMAINE L. GADSON, Petitioner,
NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.)
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.
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)).
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).
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).
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.”).
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.
§ 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) ...