Opinion
CIV-23-487-JD
09-11-2023
CLAY L. KIRBY, Petitioner, v. USA, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal prisoner appearing pro se, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 18). Respondent has filed a Motion to Dismiss arguing that Petitioner has failed to show that relief under § 2255 is inadequate or ineffective, that the Western District of Oklahoma is not a proper venue for the § 2241 Petition, and that transfer to the proper district is not in the interest of justice. (Doc. 22). For the reasons set forth below, the undersigned recommends that the Court GRANT Respondent's Motion and DISMISS the Petition without prejudice.
The court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. Procedural History
On May 16, 2017, a federal grand jury in the Southern District of Illinois indicted Petitioner on one count of conspiracy to distribute methamphetamine. See United States v. Kirby, No. CR-17-40030-JPG, at Doc. 1 (S.D. Ill. May 16, 2017). On May 21, 2017, the United States filed an information pursuant to 21 U.S.C. § 851 seeking to enhance Petitioner's sentence based on previous state convictions. (Id. at Doc. 18). Petitioner pled guilty on November 7, 2017. (Id. at Docs. 42-43). As part of his plea agreement, Petitioner acknowledged his crime carried a statutory penalty of “10 years to life” and agreed to “an Offense Level of 33 [and] Criminal History Category of IV, which carrie[d] an advisory sentencing range of 188-235 months.” (Id. at Doc. 43, at 1, 3). On February 14, 2018, Petitioner was sentenced to 188 months of imprisonment followed by eight years of supervised release. (Id. at Doc. 65, at 2, 3). Petitioner's sentence was subsequently modified by court order to 141 months. (Doc. 1, at 16).
II. The Instant Petition
On December 13, 2022, Petitioner filed the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 in the United States District Court for the Southern District of Illinois. (Doc. 1, at 8). At that time, he was incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri. (Id. at 1). On May 22, 2023, the Respondent moved to transfer the case to the Western District of Oklahoma due to the fact that Petitioner had been transferred to the Federal Transfer Center in Oklahoma City, Oklahoma. (Doc. 12). The case was thereafter transferred to this Court, with the court in the Southern District of Illinois reasoning that
[t]he proper venue for filing a § 2241 petition is in the district where the prisoner is confined. Wyatt v. United States, 574 F.3d 455, 459-60 (7th Cir. 2009). This is true even when a petitioner seeks relief under the savings clause of 28 U.S.C. § 2255. Garza v. Lappin, 253 F.3d 918, 921 (7th Cir. 2001) (A § 2241 petition, even invoking the savings clause of § 2255, must be filed in “the district of confinement . ., not the district where the case was tried”).(Doc. 15). Petitioner was subsequently transferred to the United States Penitentiary in Yazoo City, Mississippi, where he is currently confined. (Doc. 23).
See also Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (BOP Register #13656-025) (last visited Sept. 11, 2023). See United States v. Muskett, 970 F.3d 1233, 1237 n.4 (10th Cir. 2020) (taking judicial notice of inmate's status according to the Bureau of Prison's Inmate Locator).
In the Petition, Petitioner presents one ground for relief: “[u]se of impermissible predicate offense to enhance current sentence under 21 U.S.C. § 851; caused by ineffective assistance of counsel.” (Doc. 1, at 6). He asserts that “[i]n this petition [he is] challenging the validity of [his] conviction or sentence as imposed.” (Id. at 3). He states that he did not file a motion to challenge his conviction or sentence under 28 U.S.C. § 2255. (Id.) When asked to explain “why the remedy under 28 U.S.C. § 2255 is inadequate or ineffective to challenge [his] conviction or sentence,” he stated: “[p]ast the one-year limitation under AEDPA; challenging the execution of sentence, eligible for immediate release. Illegal sentence, i.e., actual innocent of sentence imposed.” (Id. at 4). For relief, Petitioner requests resentencing, his immediate release, the appointment of counsel, and an evidentiary hearing. (Id. at 7).
III. Analysis
A. Statutory Framework
A federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States” may file a motion to “vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “This motion must be filed in the district court where sentence was imposed.” Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016) (internal quotation marks omitted). See Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (“[A] federal prisoner's attempt to attack the legality of his conviction or sentence generally must be brought under [28 U.S.C.] § 2255, and in the district court that convicted and sentenced him.”).
“A § 2255 motion is ordinarily the only means to challenge the validity of a federal conviction following the conclusion of direct appeal. But in rare instances, a prisoner may attack his underlying conviction by bringing a § 2241 habeas corpus application under the ‘savings clause' in § 2255(e).” Hale, 829 F.3d at 1165 (internal citations and quotation marks omitted). See Prost, 636 F.3d at 581 (explaining that “§ 2241 petitions, brought in the district where the prisoner is confined, are generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement”). The savings clause provides:
An application for a writ of habeas corpus [(§ 2241)] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section [(§ 2255)], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion [(§ 2255)] is inadequate or ineffective to test the legality of his detention.Hale, 829 F.3d at 1165 (quoting 28 U.S.C. § 2255(e)). “Thus, a federal prisoner may file a § 2241 application challenging the validity of his sentence only if § 2255 is ‘inadequate or ineffective to test the legality of his detention.' The application must be brought in the district where the prisoner is confined.” Id. (internal citations and quotation marks omitted). Thus, in this Circuit, as in the Seventh Circuit, the proper venue for a § 2241 application is in the district of confinement, even when the savings clause of § 2255 is invoked. See also Davis v. English, 753 Fed.Appx. 635, 637 n.2 (10th Cir. 2018) (“Pursuant to the ‘savings clause' set out in § 2255(e), a federal prisoner may file an application for habeas corpus under § 2241 in the district of confinement if the prisoner demonstrates that the remedy provided by § 2255 is ‘inadequate or ineffective to test the legality of his detention.'”). However, “[j]udicial review of a § 2241 petition must be sought in the district where a prisoner is confined at the time of filing the petition.” McBee v. Lewis, 166 Fed.Appx. 360, 362 (10th Cir. 2006) (emphasis added).
B. Venue Is Improper in this District and Transfer Is Not in the Interest of Justice.
According to his Petition, Petitioner was incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri (“MCFP Springfield”) when he filed the Petition in the Southern District of Illinois. (Doc. 1, at 1). MCFP Springfield is in the Western District of Missouri. See Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004) (explaining the Western District of Missouri was “the proper forum for a § 2241 claim” for a prisoner incarcerated at what is now MCFP Springfield). Because Petitioner was transferred to the Federal Transfer Center in Oklahoma City after the filing of his Petition - then subsequently to the United States Penitentiary in Yazoo City, Mississippi - the Western District of Oklahoma is not the proper forum for Petitioner's § 2241 claim.
When a civil action is filed in a court (or transferred to a court) that lacks jurisdiction,
the court shall, if it is in the interest of justice, transfer such action . . . to any other such court . . . in which the action . . . could have been brought at the time it was filed . . ., and the action . . . shall proceed as if it had been filed in . . . the court to which it is transferred on the date upon which it was actually filed in . . . the court from which it is transferred.28 U.S.C. § 1631. The Tenth Circuit has stated that
[a]lthough ... § 1631 contain[s] the word ‘shall,' we have interpreted the phrase ‘if it is in the interest of justice' to grant the district court discretion in making a decision to transfer an action or instead to dismiss the action without prejudice. Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (internal citations and quotation marks omitted). In this case, transfer of this § 2241 Petition to the Western District of Missouri is not in the interest of justice because, as explained below, it would be subject to dismissal there for failure to satisfy the requirements of § 2255(e)'s savings clause and thus a lack of jurisdiction.
C. Petitioner's Claims Are Not Cognizable Under 28 U.S.C. § 2241 Because He Has Failed to Establish that the § 2255 Remedy Is Inadequate or Ineffective.
By arguing that his current sentence was improperly enhanced with the use of a “non-qualifying predicate offense,” (Doc. 1, at 6), Petitioner is challenging the validity of his federal sentence as imposed, not its execution. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (federal inmate's challenge alleging improper enhancement of federal sentence was an attack on the legality of inmate's detention); see also Martin v. Greilick, No. CIV-19-686-SLP, 2019 WL 4198619, at *2 (W.D. Okla. July 30, 2019), report and recommendation adopted, 2019 WL 4197603 (W.D. Okla. Sept. 4, 2019) (holding that by challenging his sentence enhancement, “Petitioner is challenging the validity of his sentence, rather than its execution”). Thus, Petitioner's claim is generally only cognizable under a § 2255 motion filed in the district court that convicted and sentenced him. Prost, 636 F.3d at 581. Petitioner concedes that he has not filed a motion under § 2255. (Doc. 1, at 3).
As discussed above, in order to proceed under § 2241, he must establish that “the § 2255 remedial mechanism is ‘inadequate or ineffective to test the legality of his detention.'” Prost, 636 F.3d at 580 (quoting § 2255(e)). It is the petitioner's burden to show the § 2255 remedy is inadequate or ineffective. Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013).
Section 2255 has been found to be inadequate or ineffective only in extremely rare and limited circumstances, such as the abolition of the original sentencing court; the sentencing court's refusal to consider, or inordinate delay in considering, the § 2255 motion; and the inability of a single sentencing court to grant complete relief when sentences have been imposed by multiple courts. This is because § 2255(e)'s saving clause is concerned with process - ensuring the petitioner an opportunity to bring his argument - not with substance - guaranteeing nothing about what the opportunity promised will ultimately yield in terms of relief.Jones v. Goetz, 712 Fed.Appx. 722, 727 (10th Cir. 2017) (internal citations and quotation marks omitted). Thus, “[t]he relevant measure . . . is whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” Prost, 636 F.3d at 584. Absent such a showing, “the court lacks jurisdiction to consider the petition on the merits.” Jameson v. Samuels, 555 Fed.Appx. 743, 746 (10th Cir. 2014).
Petitioner argues that § 2255 is inadequate or ineffective because he is “[p]ast the one-year limitation under AEDPA.” (Doc. 1, at 4). However, “[t]he fact that any § 2255 motion that [Petitioner] might bring would be time-barred does not render the § 2255 remedy itself inadequate or ineffective.” Haynes v. Maye, 529 Fed.Appx. 907, 910 (10th Cir. 2013) (citing Bradshaw, 86 F.3d at 166 (“Failure to obtain relief under [§ ] 2255 does not establish that the remedy so provided is either inadequate or ineffective.”)). See also Jones v. Goetz, 712 Fed.Appx. 722, 728 (10th Cir. 2017) (“squarely reject[ing]” argument that “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 [§ 2241 petitioner's] detention”); Moreno v. Cozz-Rhodes, 514 Fed.Appx. 746, 747 (10th Cir. 2013) (“Although the one-year statute of limitations would likely render a § 2255 motion untimely, this does not establish the statutory remedy is inadequate or ineffective.”).
In his explanation for why § 2255 is inadequate or ineffective, Petitioner also states, “[i]llegal sentence, i.e., actual innocent of sentence imposed.” (Doc. 1, at 4). Taking this statement in context with the rest of the Petition, (id. at 1-8), and Petitioner's Memorandum of Law, (id. at 9-14), Petitioner is not claiming that he is actually innocent of the federal crime of conviction, conspiracy to distribute methamphetamine. Rather, he is claiming that his sentence was improperly enhanced with a prior state offense, either because he did not serve “more than one year” in jail on the state offense, (id. at 10), or because the state offense remained “unadjudicated” until 2022, after he pled guilty to the federal charge, (id. at 10, 18). All of these arguments are challenges to the legality of Petitioner's federal sentence and could have been raised in a § 2255 motion. Regardless, “[u]nder the Prost framework, a showing of actual innocence is irrelevant.” Abernathy v. Wandes, 713 F.3d 538, 546 n.7 (10th Cir. 2013). See also Guerrero v. English, 743 Fed.Appx. 207, 209-10 (10th Cir. 2018) (“[A] showing of actual innocence is irrelevant when a court determines whether it has statutory jurisdiction to consider a § 2241 motion.”) (internal quotation marks omitted).
Petitioner additionally argues that he may bring his challenge under § 2241 pursuant to Seventh Circuit authority that “arguments based on Mathis [v. United States, 579 U.S. 500 (2016)] do not justify successive petitions under § 2255 and must be brought, if at all, in a petition under 28 U.S.C. § 2241.” (Doc. 1, at 9) (quoting Eaton v. Keyes, 2022 WL 3027030, at *2 (W.D. Wis. Aug. 1, 2022). However, this argument fails because Petitioner challenges the sentencing enhancement that was applied to him under 18 U.S.C. § 851, and Mathis challenges attack sentence enhancements under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Petitioner's other proffered bases for the court's jurisdiction over his § 2241 Petition are likewise inapplicable. (See Doc. 1, at 9) (invoking 28 U.S.C. § 2255(h) (regarding the certification of second or successive § 2255 motions); 28 U.S.C. § 2255(f)(4) (permitting the one-year limitations period for § 2255 motions to begin on “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence”); 18 U.S.C. § 3582(c)(1)(A) (establishing procedures for motions for compassionate release and reduction in sentence); and Fed.R.Civ.P. 60(b) (setting forth grounds for relief from a final order in a civil matter)).
Petitioner cannot show that he satisfies the savings clause, as he has not alleged any grounds for relief that could not have been raised in a § 2255 motion. Having failed to establish that the remedy provided in § 2255 is inadequate or ineffective, Petitioner may not proceed under § 2241. See Martin v. Greilick, No. CIV-19-686-SLP, 2019 WL 4198619, at *2 (W.D. Okla. July 30, 2019), report and recommendation adopted, 2019 WL 4197603 (W.D. Okla. Sept. 4, 2019) (finding “Petitioner could have raised a sentence enhancement challenge in a § 2255 action rather than bringing these claims under § 2241. Thus, the savings clause does not apply and Petitioner's sole means to attack the validity of his sentence is under § 2255.”). “[W]hen a federal petitioner fails to establish that he has satisfied § 2255(e)'s savings clause test - thus, precluding him from proceeding under § 2241 - the court lacks statutory jurisdiction to hear his habeas claims.” Abernathy, 713 F.3d at 557 (citing 28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus . . . shall not be entertained . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”). As such, the dismissal should be without prejudice. Id. at 558.
Thus, even if this Court were to transfer this §2241 action to the Western District of Missouri for proper venue, that court would dismiss it without prejudice. Accordingly, dismissal by this Court, rather than transfer, is appropriate.
IV. Recommendation and Notice of Right to Object.
For these reasons, the undersigned recommends the Court GRANT Respondent's Motion (Doc. 22) and DISMISS this action without prejudice.
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by October 2, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.