Opinion
CIV-23-640-HE
08-30-2023
JAMES EARL NUNLEY, JR., Petitioner, v. WARDEN GOLDEY, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
James Earl Nunley, Jr., a pro se federal prisoner currently housed at the Federal Correctional Institution in El Reno, Oklahoma, filed an amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 with a supporting brief requesting the Court “vacate and set aside [his] conviction.” Doc. 6, at 8.United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Because Petitioner has not demonstrated his claims fall within 28 U.S.C. § 2255(e)'s savings clause, the undersigned recommends the Court dismiss the petition.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Procedural background.
In 2017, Petitioner pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), in the United States District Court for the Northern District of Texas. United States v. Nunley, 771 Fed.Appx. 554, 554 (5th Cir. 2019). The district court sentenced him to ninety months' imprisonment and ordered his sentence “to run consecutively to a state probation revocation sentence and any sentences arising from his pending state charges for possession of a controlled substance and child abandonment or endangerment.” Id. Petitioner appealed to the United States Court of Appeals for the Fifth Circuit, arguing the district court plainly erred “when it ordered his sentence to run consecutively to any sentences in his pending state cases despite recognizing those state crimes as relevant conduct,” and by “classifying his Texas conviction for aggravated robbery as a crime of violence.” Id. at 554-55. The appellate court denied Petitioner's claims and affirmed the district court's judgment on May 31, 2019. Id. at 555. The United States Supreme Court denied Petitioner's petition for writ of certiorari on October 15, 2019. Nunley v. United States, 140 S.Ct. 410 (Mem.) (2019).
Petitioner states he filed a 28 U.S.C. § 2255 motion that challenged his conviction or sentence in the “United States District Court Northern District.” Doc. 6, at 4. But he does not state when he filed it and provides no information on the disposition of his motion. Id. The undersigned can find no record of the motion.
II. Petitioner's claim.
In his sole ground for relief, Petitioner asserts that “18 U.S.C. 922(g)(1) is unconstitutional.” Id. at 7. In his brief in support of his petition, Petitioner asserts “he is one of the people and a citizen of the State of Texas who is with rights to keep and bear arms in the lawful defense of himself.” Id. Att. 1, at 1. He “challenges the statute of 18 U.S.C. 922(g)(1) on Tenth Amendment grounds and that the United States lacked jurisdiction to proceed with this case since its inception.” Id. He asks this Court to “reverse the opinion of the District Court.” Id. at 5.
When prompted on the § 2241 form petition to explain why his § 2255 remedy was inadequate or ineffective to challenge his conviction or sentence, he stated it “[d]oes not meet the requirement of such due to no Supreme Court ruling.” Doc. 6, at 5. And in his brief, he states that “Congress [] passing the statute of 28 U.S.C. 2255 and 2241 has violated the First Amendment by making a statute that creates barriers in order to hear the valid claim of Nunley which is to be in pursuance with the U.S. Constitution.” Id. Att. 1, at 2.
III. Analysis.
“Since 1948, Congress has provided that a federal prisoner who collaterally attacks his sentence ordinarily must proceed by a motion in the sentencing court under § 2255, rather than by a petition for a writ of habeas corpus under § 2241.” Jones v. Hendrix, 143 S.Ct. 1857, 1863 (2023). So a § 2255 motion serves as “the primary vehicle to attack the validity of a federal conviction or sentence.” Guerrero v. English, 743 Fed.Appx. 207, 209 (10th Cir. 2018) (citing Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)); see also Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016) (“A § 2255 motion is ordinarily the only means to challenge the validity of a federal conviction following the conclusion of direct appeal.”). And a federal prisoner must file that motion in the district court that imposed his conviction and sentence. Hale, 829 F.3d at 1165 (citing Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010)).
A § 2241 petition, on the other hand, is “generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement.” Prost, 636 F.3d at 581. A prisoner must file it “in the district where [the prisoner] is incarcerated.” Kirkland v. English, 757 Fed.Appx. 640, 642 (10th Cir. 2018) (quoting Hale, 829 F.3d at 1166); see also Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.”).
Petitioner is challenging the validity of his conviction and sentence by claiming that the government had no jurisdiction to prosecute him, and his conviction violates his constitutional and state law rights to “keep and bear arms in the lawful defense of himself.” Doc. 6, Att. 1, at 1. Because he is not attacking the execution of his sentence, his attack is only appropriate in a § 2255 challenge before the sentencing court, not this Court. See 28 U.S.C. § 2255(a) (permitting an inmate serving a sentence after conviction of a federal crime to “move the court which imposed the sentence to vacate, set aside or correct the sentence”).
In “rare instances,” a federal prisoner may file a § 2241 application to challenge his conviction under § 2255(e)'s “savings clause.” See Hale, 829 F.3d at 1165 (quoting Sines, 609 F.3d at 1073, and then quoting Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011)). Section 2255(e) states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 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 is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255(e).
Section 2255(e) “bars a federal prisoner from proceeding under § 2241 unless” he meets the requirements of the savings clause. Jones, 143 S.Ct. at 1863 (quoting § 2255(e)). The savings clause only “preserves recourse to § 2241 where unusual circumstances make it impossible or impracticable to seek relief in the sentencing court.” Id. at 1868. Such circumstances might include the “dissolution” of the sentencing court or the prisoner's inability “to be present at the hearing.” Id. at 1866. Petitioner presents no such circumstances in his petition to preserve his recourse to § 2241.
Similarly, courts have considered “whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion.” Prost, 636 F.3d at 584. If so, then “the clause is satisfied” and a prisoner may not resort to § 2241. Id. at 584-85 (explaining that “the clause emphasizes its concern with ensuring the prisoner an opportunity or chance to test his argument” and “that with this opportunity comes no guarantee about outcome or relief”).
Petitioner has not demonstrated the inadequacy of the § 2255 remedy. He states only that there is “no Supreme Court ruling” and that § 2255 and § 2241 “conflict[] with the First Amendment.” Doc. 6, at 5 & Att. 1, at 2. Neither of these statements show it was either impossible or impracticable for Petitioner to proceed in the sentencing court with his challenge to the validity of his conviction. See, e.g., Prost, 636 F.3d at 585 (“[T]he savings clause is satisfied so long as the petitioner had an opportunity to bring and test his claim.”).
Having considered the petition and the nature of Petitioner's claims, the undersigned recommends the Court dismiss the petition. Petitioner fails to show he satisfies § 2255(e)'s savings clause test, and so he may not proceed under § 2241. See Jones, 143 S.Ct. at 1863 (instructing that § 2255(e) “bars a federal prisoner from proceeding under § 2241 unless” he satisfies the savings clause).
IV. Recommendation.
The undersigned recommends the Court dismiss Petitioner's § 2241 petition. Doc. 6. The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 20, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his 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 in the captioned matter.