United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Travis Denny, who is incarcerated at the Federal Correctional
Institution in Cumberland, Maryland
("FCI-Cumberland"), filed this pro se
Petition for a writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 alleging ineffective assistance of counsel during
his sentencing. ECF No. 1. Respondent Michael V. Sample,
Acting Warden at FCI-Cumberland, filed a Motion to Dismiss
the Petition arguing that Denny's claim is properly
construed under 28 U.S.C. § 2255 and not § 2241
because it challenges the validity of the federal judgment
imposed against him, not the execution of his sentence. ECF
No. 5. Denny has replied. ECF No. 7. No hearing is necessary.
See Loc. R. 105.6 (D. Md.). For the following
reasons, the Court will grant Defendant's Motion to
Dismiss the Petition.
April 13, 2004, a federal grand jury sitting in Bernalillo
County, New Mexico returned a one-count indictment charging
Denny with possession with intent to distribute 500 grams or
more of a mixture and substance containing a detectable
amount of cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B). United States v. Denny,
No. 1:04-cr-666-JAP (D.N.M.), ECF No. 11. On August 11, 2004,
Denny was charged in a superseding indictment that did not
alter any of the charges but added a sentencing allegation.
Denny (D.N.M.), ECF No. 29. Denny pled guilty to the
superseding indictment on January 18, 2007, Denny
(D.N.M.), ECF No. 102, and on September 26, 2007, he was
sentenced to 240 months' incarceration followed by eight
years of supervised release. Denny (D.N.M.), ECF No.
127. The court entered its judgment of conviction on October
1, 2007. Denny (D.N.M.), ECF No. 128.
November 2, 2009, Denny filed a Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255.
Denny (D.N.M.), ECF No. 130. The motion argued that
Denny's counsel was ineffective for failing to file a
direct appeal from Denny's conviction and sentence as
Denny had requested. Id. at 5. Following briefing on
the matter and a hearing on March 22, 2010, United States
Magistrate Judge Karen B. Molzen issued proposed findings and
recommended that the § 2255 motion be dismissed as
untimely under the one-year statute of limitations imposed by
28 U.S.C § 2255(f)(4), which had run on September 28,
2009. Denny (D.N.M.), ECF No. 146; ECF No. 152 at
10. Judge Molzen also found that Denny was not entitled to
equitable tolling. Denny (D.N.M.), ECF No. 152 at
December 16, 2010, District Court Judge James A. Parker
issued an order adopting Judge Molzen's proposed findings
and recommended disposition, and issued a final order of
dismissal as to Denny's § 2255 motion.
Denny (D.N.M.), ECF Nos. 156, 157. On February 10,
2011, Denny filed a notice of appeal. Denny
(D.N.M.), ECF No. 158. On November 16, 2012, the United
States Court of Appeals for the Tenth Circuit issued its
mandate affirming the district court's order.
Denny (D.N.M.), ECF No. 161. On February 10, 2015,
Denny filed a Motion to Reduce Sentence, which the district
court denied. Denny (D.N.M.), ECF Nos. 164, 167.
Denny then sought authorization to file a second or
successive § 2255 motion, which the Tenth Circuit denied
on July 6, 2016. Denny (D.N.M.), ECF No. 177. On
March 25, 2019, Denny filed the instant Petition in this
Court under 28 U.S.C. § 2241. ECF No. 1.
habeas corpus petition may be filed under 28 U.S.C. §
2241 to attack the manner in which a sentence is
executed. Fontanez v. O'Brien, 807 F.3d 84, 87
(4th Cir. 2015) (citing In re Vial, 115 F.3d 1192,
1194 n.5 (4th Cir. 1997) (en banc)). Such a petition must be
filed in the district in which the petitioner is
incarcerated. Hahn v. Moseley, 931 F.3d 295, 300
(4th Cir. 2019). "Generally," however,
"defendants who are convicted in federal court must
pursue habeas relief from their convictions and sentences
through the procedures set out in 28 U.S.C. §
2255." Id. (citing Rice v. Rivera, 617
F.3d 802, 807 (4th Cir. 2010)). "Nonetheless, §
2255 includes a 'savings clause' that preserves the
availability of § 2241 relief when § 2255 proves
'inadequate or ineffective to test the legality of a
[prisoner's] detention.'" Id.
(alteration in original) (citing 28 U.S.C. § 2255(e)).
Fourth Circuit, a § 2255 petition "is inadequate
and ineffective to test the legality of a sentence when: (1)
at the time of sentencing, settled law of this circuit or the
Supreme Court established the legality of the sentence; (2)
subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect." United States v.
Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Denny's main contention is that his trial counsel failed
to file a direct appeal after sentencing despite Denny asking
him to do so. ECF No. 1. That argument speaks to the validity
of Denny's sentence, not to its execution. Thus, a §
2255 motion, not a § 2241 motion, is the proper means by
which to seek relief unless the savings clause at §
2255(e) applies. Denny has not shown that it applies here.
The savings clause enables relief when there is a
post-conviction change in substantive law "that renders
noncriminal the conduct by which a prisoner was
convicted." See Wheeler, 886 F.3d at 428. Denny
does not identify any intervening change to the law governing
his conviction under 21 U.S.C. § 841. Instead, he
correctly argues that the Supreme Court in Garza v.
Idaho, 139 S.Ct. 738 (2019), broadened its earlier
holding in Roe v. Flores-Ortega, 528 U.S. 470
(2000), that a presumption of prejudice applies when counsel
fails to file a notice of appeal that the defendant
requested. ECF No. 1 at 5-6, 54. Garza held that the
presumption exists even when the defendant has signed an
appeal waiver. 139 S.Ct. at 746-47.
the holding in Garza does not concern the
substantive law under which Denny was convicted, Denny cannot
meet the test established in Wheeler. Therefore, a
§ 2255 petition is the proper vehicle for his claim.
§ 2255 petitions may only be filed in "the court
which imposed the sentence." 28 U.S.C. § 2255(a);
see Underwood v. Cauley, Civil Action No. 1:11-0217,
2014 WL 4202541, at *4 (S.D. W.Va. Apr. 11, 2014). Denny has
already pursued and unsuccessfully litigated a § 2255
petition in his court of conviction and sentencing. That
petition was dismissed not because of weakness in Denny's
ineffective assistance claim - Judge Molzen in fact found
that if the petition were timely, Denny would be entitled to
relief under Flores-Ortega - but because the statute
of limitations had run. See Denny (D.N.M), ECF No.
152 at 4, 10. The Tenth Circuit, from which Denny would
require authorization to file a second § 2255 motion,
see 28 U.S.C. § 2255(h), affirmed that ruling.
Denny (D.N.M), ECF No. 161.
Denny's ineffective assistance claim is time-barred, it
is irrelevant that the Supreme Court's ruling in
Garza might strengthen the claim, and a successive
§ 2255 motion on that ground would thus be frivolous.
Although transfer to the proper district is the typical
disposition for a § 2255 petition filed in the wrong
court, courts have discretion to dismiss rather than transfer
frivolous, time-barred petitions. United States v.
McNeill, 523 Fed.Appx. 979, 984 (4th Cir. 2013).
Pursuant to that authority, the Court will dismiss
CERTIFICATE OF APPEALABILITY
district court dismisses a habeas petition, a Certificate of
Appealability may issue "only if the applicant has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). When a petition is
denied on procedural grounds, as in this case, the petitioner
meets the standard by showing that reasonable jurists
"would find it debatable whether the petition states a
valid claim of the denial of a constitutional right" and
"whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000). For the reasons discussed above, Denny fails
to satisfy this standard, and the Court will decline to issue
a Certificate of Appealability. ...