United States District Court, D. Maryland
W. Grimm United States District Judge
Allen is a federal inmate incarcerated at the Federal
Correctional Institution in Cumberland, Maryland. On June 6,
2016, he filed this Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241, asking to vacate his
sentence imposed by the United States District Court for the
District of Massachusetts for possession of a firearm by a
convicted felon. ECF No. 1. For reasons set forth below, the
Petition will be treated as Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 and
transferred to the United States District Court for the
District of Massachusetts.
2007, Allen entered a conditional plea of guilty to felon in
possession of a firearm and ammunition, in violation of 18
U.S.C. § 922(g)(1). Allen was sentenced to 180 months
imprisonment and 3 years of supervised release on March 5,
2008. United States v. Allen (“Allen
I”), Criminal Case No. 06-cr-10170-MLW-1. (D.
Mass.). Under the terms of the plea agreement, Allen retained
the right to appeal a suppression ruling, and he noted an
appeal. The United States Court of Appeals for the First
Circuit affirmed the judgment of conviction on July 22, 2009.
United States v. Allen, 573 F.3d 42 (1st Cir. 2009).
December 24, 2013, the United States District Court for the
District of Massachusetts denied Allen’s Motion to
Vacate pursuant to 28 U.S.C. § 2255 and denied a
Certificate of Appealability. Allen I; see
filed this § 2241 petition on June 6, 2016. ECF No. 1.
He claims he is entitled to vacatur of his sentence and
resentencing in light of Johnson v United States,
135 S.Ct. 2551 (2015) and Welch v. United States,
136 S.Ct. 1257, 1265 (2016). Pet. 7-8.
asserts this Court has jurisdiction because the remedy
provided under 28 U.S.C. § 2255 is inadequate and
ineffective to test the legality of his sentence.
“[A]ttacks on the execution of a sentence are properly
raised in a § 2241 petition.” In re Vial,
115 F.3d 1192, 1194 n.5 (4th Cir. 1997). But, a motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255 is typically the exclusive remedy for testing the
validity of federal judgments and sentences. 28 U.S.C. §
2255(a); Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.
2010) (observing that “it is well established that
defendants convicted in federal court are obliged to seek
habeas relief from their convictions and sentences through
§ 2255”). “In contrast to a § 2255
habeas petition, which is filed with the original sentencing
court, a § 2241 habeas petition can only be filed in the
district in which a prisoner is confined.” United
States v. Poole, 531 F.3d 263, 264 (4th Cir. 2008).
prisoner “may file a habeas petition under § 2241
only if the collateral relief typically available under
§ 2255 ‘is inadequate or ineffective to test the
legality of his detention.’”' Prousalis
v. Moore, 751 F.3d 272, 275 (4th Cir. 2014) (quoting 28
U.S.C. § 2255(e)). If a federal inmate files a §
2241 petition that does not fall within the purview of this
“savings clause, ” then the “unauthorized
habeas motion must be dismissed for lack of
jurisdiction.” Rice, 617 F.3d at 807.
“savings clause” is not triggered merely
“because an individual is procedurally barred from
filing a Section 2255 motion.” In re Vial, 115
F.3d at 1194 n.5. The United States Court of Appeals for the
Fourth Circuit has held that a § 2255 motion is
inadequate and ineffective to test the legality of a
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
The petitioner bears the burden of demonstrating that the
§ 2255 remedy is inadequate or ineffective. Hood v.
United States, 13 F.App’x 72 (4th Cir. 2001).
April 18, 2016, the Supreme Court held that Johnson
announced a substantive, rather than procedural, rule because
it altered the reach of the underlying statute rather than
the judicial procedures by which the statute was applied.
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
Johnson thus applies retroactively to cases on collateral
review. Id. Because the Supreme Court has announced
that Johnson establishes a new rule of
constitutional law to be applied retroactively to cases on
collateral review, Allen cannot demonstrate that § 2255
is inadequate or ineffective to test the legality of his
detention. As such, the Court lacks jurisdiction to consider
this matter. Instead, Allen must seek relief from the
sentencing court pursuant to § 2255 or seek
authorization from the appropriate court of appeals to file a
second or successive § 2255 motion based on “a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2).
that the deadline for filing Johnson claims was one
year from the date the Supreme Court initially recognized the
right when it decided Johnson on June 25, 2016,
see 28 U.S.C. § 2255(f)(3), the Court shall
treat the Petition as a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, and in
the interests of justice transfer this case pursuant to 28
U.S.C. § 1631 to the United States District Court for