United States District Court, D. Maryland
RAY A. BLANCHARD, #446601
WARDEN RICHARD DOVEY
J. MESSITTE UNITED STATES DISTRICT JUDGE.
three-day jury trial petitioner Ray Blanchard
("Blanchard") was convicted of one count of a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). See United States v. Blanchard, Criminal
No. PJM-07-0143 (D. Md.). On June 25, 2009, criminal judgment
was entered sentencing Blanchard to a 327-month term with
five years of supervised release. He was further ordered to
pay a special assessment of $100.00. Id. at ECF No.
85. On August 17, 2010, the criminal judgment was affirmed by
the United States Court of Appeals for the Fourth Circuit.
Id. at ECF No. 100.
March 31, 2011, Blanchard filed a 28 U.S.C. § 2255
Motion to Vacate. Id. at 103. The Motion to Vacate
was denied after full briefing on November 2,
2011. Id. at ECF Nos. 111-114, 118, &
120-121. On March 20, 2012, the Fourth Circuit dismissed the
appeal and denied a Certificate of Appealability.
Id. at ECF No. 130.
November 17, 2014, a counseled Motion to Correct Sentence was
filed pursuant to 28 U.S.C. § 2241. See United
States v. Blanchard, Criminal No. PJM-07-0143 (D. Md.)
at ECF No. 138. The Motion, seeking relief under Descamps
v. United States, 133 S.Ct. 2276 (2013), was granted on
November 19, 2014. Id. at ECF No. 142. On November
25, 2014, an amended judgment was entered reducing
Blanchard's sentence to a 120-month term and three years
of supervised release. The $100.00 special assessment
remained intact. Id. at ECF No. 148. On March 27,
2015, Blanchard's Motion for Reduction of Sentence was
denied, the Court finding that he had failed to argue or meet
any of the exceptions to the rule that a federal court
"may not modify a term of imprisonment once it has been
imposed." Id. at ECF No. 148.
29, 2016, Blanchard, who is now confined at Maryland
Department of Correctional Services prison, the Maryland
Correctional Institution in Hagerstown, Maryland, filed a
Petition for "Writ of Habeas Corpus due to the
Petitioner being held in Violation of the Laws of the United
States Constitution-False Imprisonment-and Fraud." The
matter was construed as a 28 U.S.C. § 2241 Petition for
writ of habeas corpus and instituted as the above-captioned
case. ECF No. 1. Blanchard attacks his 2009 federal
conviction and sentence, complaining that: (1) exculpatory
evidence (radio transmissions and perjured testimony) was
withheld; (2) the prosecution knowingly presented false
testimony and a misleading affidavit; (3) the prosecution and
defense counsel deprived him of due process as they
"permitted false imprisonment by not presenting the fact
that [Blanchard] was target[ed] by P.G. County Police:"
and (4) his federal prosecution is tainted because it was
based on Maryland charges, for which there was no probable
cause. Id., pp. 1-21. He asks that the Court appoint
him counsel, schedule a hearing, and/or issue an order for
his release. ECF No. 1, pp. 21-22. The Petition was not
accompanied by the $5.00 habeas corpus fee. Blanchard shall
not be required to cure this deficiency. For reasons to
follow, the Petition shall summarily be dismissed.
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Congress circumscribed the ability of
federal prisoners to request post-conviction relief. See
Rhines v. Weber, 544 U.S. 269, 274 (2005). Title 28
U.S.C. § 2555 provides the ordinary means for a federal
prisoner to challenge his conviction or sentence. But in
AEDPA, Congress limited the jurisdiction of federal courts to
hear second or successive requests under § 2255.
See, e.g., In re Weathersby, 717 F.3d 1108, 1110
(10th Cir. 2013) ("Congress placed strict limitations on
second or successive motions under § 2255[.]").
courts may hear second or successive petitions only if they
pertain to (1) "newly discovered evidence ... [clearly
and convincingly establishing] that no reasonable factfinder
would have found the movant guilty of the offense" or
(2) "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).
claim does not fall into either of these categories, so
§ 2255(h) does not permit him to file a second or
successive motion under § 2255. If a federal prisoner
cannot meet § 2255(h)'s requirements, then he may
seek to file a traditional petition for writ of habeas corpus
under 28 U.S.C. § 2241. But that right carries
significant limits as well. Specifically, a 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 prisoner brings a § 2241 petition
that does not fall within the scope of this "savings
clause, " then the district court must dismiss the
"unauthorized habeas motion ... for lack of
jurisdiction, " Rice v. Rivera, 617 F.3d 802,
807 (4th Cir. 2010).
is a former federal prisoner who means to file a § 2241
petition for post-conviction relief challenging his 2009
federal handgun conviction. Therefore, I must assess whether
§ 2255 is "inadequate or ineffective to test the
legality of his detention." 28 U.S.C. §
a § 2241 motion is used to attack only the execution of
the sentence. See In re Vial, 115 F.3d 1192, 1194 n.
5 (4th Cir. 1997). The court does recognize exceptions to
this framework. When § 2255 is deemed to be
"inadequate or ineffective to test the legality of ...
detention, " a federal prisoner may seek a writ of
habeas corpus pursuant to § 2241. In re Jones,
226 F.3d 328, 333 (4th Cir. 2000) (quoting 28 U.S.C. §
2255). Such relief is available where a prisoner is
imprisoned for an offense which is no longer a crime. See
United States v. Surratt, 797 F.3d 240, 248-50 (4th
Cir.), reh'g en banc granted and opinion vacated. (4th
Cir. Dec. 2, 2015). The savings clause of § 2255, is
"confined to instances of actual innocence of the
underlying offense of conviction, " not
"innocence" of a sentencing factor. Darden v.
Stephens, 426 Fed.App'x 173, 174 (4th Cir. 2011)
(refusing to extend the savings clause to reach the
petitioner's claim that he was actually innocent of being
a career offender).
it appears, that the Fourth Circuit has not recognized an
entitlement to habeas corpus relief when an inmate challenges
his sentence contending that the remedy under § 2255 is
inadequate or ineffective. See United States v.
Poole, 531 F.3d 263, 267 n. 7 (4th Cir. 2008),
("Fourth Circuit precedent has likewise not extended the
reach of the [§ 2255(e)] savings clause to those
petitioner's challenging only their sentences. See In
re Jones, 226 F.3d at 333-34. "The remedy provided
under Section 2255(e) opens only a narrow door for a prisoner
to challenge the validity of his conviction or sentence under
Section 2241." Boynes v. Berkebile, 2012 WL
1569563 at *6 (S.D. W.Va. 2012). The fact that relief under
§ 2255 is barred procedurally or under the gatekeeping
requirements of § 2255 does not render the remedy of
§ 2255 inadequate or ineffective. In re Jones,
226 F.3d at 332; see also In Re Vial, 115 F.3d at
1194 n. 5 (that a § 2255 action may be unsuccessful,
untimely, or successive does not render it an inadequate or
may not rely on the savings clause provision of §
2255(e). Merely because this Court has previously denied him
relief does not render the 2255 remedy inadequate. Section
2255 will not be viewed as inadequate or ineffective merely
because § 2255 has already been denied, or because a
petitioner has been denied permission to file a second or
successive § 2255 motion, or because a second or
successive § 2255 motion has been dismissed. See
United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir.
2000). Because Blanchard can obtain the relief he seeks using
a § 2255 motion if he is entitled to it, the court lacks
jurisdiction to consider the § 2241 motion.
Antiterrorism and Effective Death Penalty Act
("AEDPA") provides, in relevant part, that
"[a] second or successive motion [under Section 2255]
must be certified as provided in Section 2244 by a panel of
the appropriate court of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
fact finder would ...