United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
August 13, 2015. Anthony Moore, an inmate housed at the
Federal Correctional Institution in Cumberland. Maryland
(FCI-Cumberland), filed a Petition for habeas corpus relief
under 28 U.S.C. S 2241. On September 9, 2015, the Court
directed the Government to file a response to the Petition.
The Government filed a Motion to Dismiss and Moore has filed
an Opposition. ECF No.9; ECF NO.7. The matter has been fully
briefed, and the case is ready for review and may be
determined without a hearing. See Local Rule 105.6
(D. Md. 2016).
December 19, 2002, a federal grand jury returned a twenty-two
count indictment charging Moore and thirteen co-defendants
with various federal drug and firearm violations. stemming
from a conspiracy to distribute heroin and cocaine base. On
May 21, 2003, Moore pleaded guilty to one count of conspiracy
to distribute and possess with intent to distribute I
kilogram or more of heroin and 50 grams or more of cocaine
base in the United States District Court for the Eastern
District of Virginia, in violation of21 U.S.C. SS 841(a)(1).
841(b)(1)(A), 846. ECF No. 7-1; see also United States v.
Moore, Criminal No. 02-cr-0225 AWA (E.D. Va. 2003).
During the May 21, 2003 plea colloquy, the sentencing court
informed Moore that his offense carried a mandatory minimum
penalty of 10 years imprisonment and a maximum possible
penalty of a life sentence, with a line not to exceed $4,
000, 000.00. ECF NO.7-1 at 5. Moore indicated his
understanding of the seriousness of the penalties.
Id. At sentencing on November 12.2003, Judge Jerome
B. Friedman examined the drug weights. Moore's role in
the offense, and the firearm enhancement. He determined that
a downward departure was not warranted and calculated
Moore's offense level as 41 under the United States
Sentencing Guidelines and his criminal history category as
IV, which resulted in an advisory guidelines range of 360
months to life. Moore was sentenced to a 360-month term of
imprisonment and five years of supervised release. The
remaining counts in the indictment were dismissed. ECF No.
7-2 at 95-103, 133-41. Judgment was entered against Moore on
November 14, 2003. Moore's appeal to the United States
Court of Appeals for the Fourth Circuit was dismissed.
tiled a 28 U.S.C. S 2255 Motion to Vacate, which attacked the
voluntariness of his guilty plea. the effectiveness of his
attorney, and the alleged unconstitutional enhancement of his
sentence. See United States v. Moore,
Criminal No. 02-cr-0225 AWA (E.D. Va. 2003) at ECF No. 69.
The United States District Court for the Eastern District of
Virginia denied the Motion on January 20.200.. Id.,
ECF No. 77. Moore filed Motions to Alter or Amend the
Judgment denying his Motion to Vacate. Id., ECF No.
78; ECF No. 79; ECF No. 80. The Motions were denied.
Id., ECF No. 80. The Fourth Circuit dismissed the
appeal on July 9. 2007. See United States v. Moore,
232 Fed.App'x 291 (4th Cir. 2007).
filed a second S 2255 Motion in the Eastern District of
Virginia. The Motion was dismissed without prejudice as
successive on February 28, 2012. See United States v.
Moore, Criminal No. 02-cr-0225 AWA (E.D. Va. 2003) at
ECF Nos. 221. 225-27. Moore moved to alter or amend the
denial of the Motion and the district court denied that
Motion on June 13, 2012. Id. ECF No. 233: ECF No.
243. Moore's appeal of the denial of his Motion and
reconsideration request was dismissed by the Fourth Circuit
on January 16. 2013.1 See United States v. Moore.
504 Fed.App'x 263 (4th Cir. 2013).
instant Petition, Moore argues that (I) his sentence exceeds
the statutory maximum in violation of provisions of the U.S.
Constitution and (2) that the federal district court lacked
subject matter jurisdiction to try, convict, or sentence him
under 21 V.S.C. S 846. ECF No. I.
Government's Motion to Dismiss, it is argued that the
Court should dismiss the Petition as the relief sought by
Moore is more properly brought under a S 2255 Motion to
Vacate and S 2255 is not "inadequate or
ineffective" so as to file an action under 28 U.S.C. S
2241. ECF NO.7. In his Opposition. Moore identifies
"several purely legal questions concerning this
Court's habeas jurisdiction and [his1 habeas
claims." ECF NO.9 at 1.
seeks habeas corpus relief under S 2241. invoking what is
often referred to as the "savings clause" provision
under S 2255(e) to seek vacatur of his sentence, criminal
judgment and indictment. An inmate may file a motion under S
2255 to collaterally attack the legality of I Moore's
subsequent post-judgment Motions to Suspend and Disbar
Counsel and to Dismiss the Indictment were denied by the
Virginia federal court. The decision was affirmed on appeal
on March 4, 2016. See United States v. Moore, 636
Fed.App'x 882 (4th Cir. 2016). his conviction or
sentence. 28 U.S.C. S 2255(a); Davis v. United
States, 417 U.S. 333, 343 (1974). But generally, a
prisoner may file a petition under S 2241 only to challenge
the manner in which a sentence is executed. 28 U.S.C. S
2241(c). A prisoner must challenge the legality of his
sentence under 28 U.S.C. S 2255 unless "the remedy by
motion [under S 2255] is inadequate or ineffective to test
the legality of his detention." 28 U.S.C. S 2255(e);
see Rice v. Rivera. 617 F.3d 802, 806-08 (4th Cir.
20I0) (per curiam); In re Jones, 226 F.3d 328, 332
(4th Cir. 2000); 28 U.S.C. S 2241(e); see also Farrow v.
Revell, 541 Fed.Appx. 327, 328 (4th Cir. 2013) (per
curiam) (“A federal prisoner who seeks to challenge the
legality of his conviction or sentence generally must proceed
pursuant to S 2255, while S 2241 petitions are reserved for
challenges to the execution of the prisoner's
sentence.") (citing In re Vial 115 F.3d 1192,
1194 (4th Cir. 1997)).
2255 is not inadequate merely because the inmate is unable to
obtain relief under S 2255. In re Vial 115 F.3d at
1194 n.5. Thus, S 2255 is not rendered inadequate because of
a limitation bar, the prohibition against successive
petitions, or a procedural bar due to failure to raise the
issue on direct appeal. Id. (citing Tripali v.
Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)). Rather, S
2255 is inadequate and ineffective to test the legality of a
(1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality of the
(2) subsequent to the prisoner's direct appeal and first
S 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
S 2255 because the new rule is not ...