United States District Court, D. Maryland
ERIC M. RICHARDSON, #44241-037 Petitioner,
UNITED STATES OF AMERICA Respondent
K. Bredar United States District Judge.
November 28, 2016, Eric M. Richardson, a federal inmate at
the Federal Correctional Institution-Schuylkill in
Pennsylvania, submitted correspondence stating his intent to
file a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 to challenge his judgment of conviction.
The court will construe his filing as a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241.
26, 2010, Richardson pleaded guilty in the District of
Maryland to conspiracy to distribute and possess with intent
to distribute a controlled substance, in violation of 21
U.S.C. § 846. See United States v. Richardson,
Criminal Action No. JKB-09-288 (D. Md.). Richardson was
adjudicated a career offender, and on December 1, 2010, the
Honorable William D. Quarles, Jr. sentenced him to 180 months
December 21, 2012, Richardson filed his first 28 U.S.C.
§ 2255 motion. Id. ECF No. 1179. On April 17,
2013, the court dismissed Richardson's § 2255 motion
as time-barred. Id. ECF No. 1129, 1130. Richardson
filed a notice of appeal, and on June 18, 2013, the United
States Court of Appeals for the Fourth Circuit denied a
certificate of appealability and dismissed the appeal.
United States v. Richardson, 529 F.App'x 342
(4th Cir. 2013) (per curiam).
August 8, 2014, Richardson filed a motion titled
“Emergency Motion to Correct Sentence Under 28 U.S.C.
§ 2241, ” challenging his career offender status
under Descamps v. United States, 133 S.Ct. 2276
(2013). Judge Quarles deemed the Petition more properly
treated as a Motion to Vacate, Set Aside or Correct pursuant
to 28 U.S.C. § 2255, and the case was docketed. See
Richardson v. United States, Civil Action No.
JKB-14-2542 (D. Md.).
November 24, 2014, the government requested holding
Richardson v. United States, Civil Action No.
JKB-14-2542 (D. Md.) in abeyance pending resolution of
United States v. Whiteside (Appeal number 13-7152),
which was then before the United States Court of Appeals for
the Fourth Circuit, and Judge Quarles granted the stay. As
explained by the government, Richardson's motion
challenged his status as a career offender based on new case
law and called into question whether his predicate
convictions should have been counted toward his career
offender status. See United States v. Richardson,
Criminal Action No. JKB-09-288 (D. Md.). ECF 1343 at 4. In
numerous filings, Richardson has opposed the stay. The case
remains stayed and will not be considered in this memorandum.
§ 2241 PETITION
as can be discerned from his most recent correspondence,
Richardson wants to challenge his judgment of conviction in a
§ 2241 petition, not a motion to vacate pursuant to 28
U.S.C. § 2255. He complains the § 2255 Motion filed
by his counsel in Civil Action No. JKB-16-2341
“superseded and replaced” his “2241
remedy” without his notice or consent. Civil Action No.
JKB-16-3829, ECF 1. Richardson indicates in his
correspondence, however, that he agreed to allow his counsel,
the Federal Public Defender, “to address the government
invoking of the Johnson decision.” ECF 1.
general rule, collateral challenges to a criminal conviction
must be filed pursuant to § 2255. A prisoner must
challenge the legality of his sentence under 28 U.S.C. §
2255 unless “the remedy by motion [under § 2255]
is inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e); see Rice v.
Rivera, 617 F.3d 802, 806-08 (4th Cir. 2010) (per
curiam); In re Jones, 226 F.3d 328, 332 (4th Cir.
2000); 28 U.S.C. § 2241(e); see also Farrow v.
Revell, 541 F.App'x 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 § 2255, while § 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)).
noted above, Richardson's first § 2255 petition was
denied. Thus, any subsequently filed § 2255 motion is a
second or successive motion for which prefiling authorization
from the Court of Appeals must be obtained. A federal
district court lacks jurisdiction to consider a second or
successive § 2255 motion unless it has been certified in
advance by a panel of the appropriate circuit court of
appeals and found to contain newly discovered evidence
bearing on the innocence of the movant or “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). A § 2241
habeas petition may not be used to circumvent the statutory
limitations imposed on second or successive § 2255
motions. See Jones, 226 F.3d at 333; Vial,
115 F.3d at 1194 n.5.
has received authorization to file a successive petition. On
June 23, 2016, the United States Court of Appeals for the
Fourth Circuit granted Richardson's motion, filed by his
court-appointed counsel, for prefiling authorization. The
Fourth Circuit determined that Richardson made a prima facie
showing that the new rule of constitutional law announced in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(holding the residual clause of the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally
vague), and held to apply retroactively to cases on
collateral review by Welch v. United States, 136
S.Ct. 1257 (2016), may apply to his case. See In re Eric
Richardson, CA No. 16-743 (4th Cir. 2016). In
consequence, on June 24, 2016, Richardson's counsel filed
a successive motion under § 2255 based on the ruling in
Johnson, 135 S.Ct. at 2551. The case was docketed in
this court as Civil Action No. JKB-16-2341 (D. Md.). In that
case, Richardson's counsel argues that in light of
Johnson, Richardson is no longer a career offender
because his prior Maryland convictions no longer qualify as
career offender predicate “crimes of violence.”
ECF No. 1539.
extent Richardson may intend to challenge his judgment of
conviction in his November 28, 2016, correspondence or
elsewhere by way of a § 2241 petition, he may not do so
unless the “savings clause” under 28 U.S.C.
§ 2255(e) applies for a § 2255 motion deemed
ineffective and inadequate to provide the relief requested.
To show a § 2255 motion is inadequate and ineffective to
test the legality of a conviction under the savings clause, a
litigant must show that (1) at the time of the 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 at 333-34. Further, 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 F.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). Section 2255 is inadequate or
ineffective only in the “rare situation” where an
intervening change in law makes the crime for which the
petitioner was convicted “non-criminal.”
Okereke v. United States, 307 F.3d 117, 120 (2002).
“The remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because ... an individual is
procedurally barred from filing a § 2255 motion.”
In re Vial, at 1194 n.5.
does not discuss, much less satisfy the requisites set forth
in Jones entitling him to proceed under the savings
clause and challenge his sentence under § 2241. Most
importantly, a remedy is available to Richardson under §
2255 because he has been granted authorization to file a
successive petition. Thus, the remedy under § 2255 is
neither inadequate nor ineffective so that the savings clause
applies. Accordingly, to the extent Richardson's