“‘Inadequate or ineffective’ means that ‘a legal theory that could not have been presented under § 2255 establishes the petitioner’s actual innocence.’”
How later courts described this case
- “‘Inadequate or ineffective’ means that ‘a legal theory that could not have been presented under § 2255 establishes the petitioner’s actual innocence.’”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NEVILLE MCGARITY,
Petitioner,
v. Case No. 3:21-CV-00370-NJR
DAN SPROUL,
Respondent.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Petitioner Neville McGarity, an inmate in the Bureau of Prisons, filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) to challenge his conviction in United
States v. McGarity, Case No. 3:08-cr-00022-LC-EMT-6 (N.D. Fla.). Pending before the Court
are several pro se motions for in forma pauperis status, appointment of counsel, service of
process at government expense, copies of trial records, and an evidentiary hearing (Doc. 2-
6). The Court must additionally conduct preliminary review of the Petition pursuant to Rule
4 of the Rules Governing Section 2254 Cases in United States District Courts. For the reasons
set forth below, the Court denies the petition and dismisses it with prejudice.
RELEVANT FACTS AND PROCEDURAL HISTORY
On January 14, 2009, Neville McGarity was convicted at trial on eleven counts relating
to his involvement in a child exploitation enterprise. McGarity, 08-cr-00022-LC-EMT-6 at
Doc. 478. McGarity was sentenced on April 14, 2009, to a term of life imprisonment,
supervised release for a term of life, and a special assessment of $600. Id. at Doc. 592, 611.
McGarity appealed his conviction to the Eleventh Circuit, which vacated his convictions for
obstruction of justice and conspiracy, yet this did not change his sentence of life
imprisonment on the remaining counts. Id. at Doc. 903, 919. McGarity attempted to appeal to
the Supreme Court, which denied certiorari. Id. at Doc. 929. McGarity then filed a petition
under 28 U.S.C. § 2255, which was terminated in 2016. McGarity v. United States, 3:13-cv-
00536-LC-EMT (N.D. Fla.). McGarity filed the instant petition on April 8, 2021 (Doc. 1).
In his petition, McGarity attempts to challenge his original conviction, arguing that
his participation in the criminal enterprise could not be proven as no encryption key was
found on his person, that the court in the Northern District of Florida lacked jurisdiction over
him, a citizen of Texas, and that evidence was collected illegally by Australian law
enforcement and passed on federal authorities.
LEGAL STANDARD
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used
to raise claims of legal error in conviction or sentencing, but are instead limited to challenges
regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Thus, aside from the direct appeal process, a prisoner who has been convicted in
federal court is generally limited to challenging his conviction and sentence by bringing a
motion pursuant to 28 U.S.C. § 2255 in the court which sentenced him. A Section 2255 motion
is ordinarily the “exclusive means for a federal prisoner to attack his conviction.” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003).
Under very limited circumstances, however, it is possible for a prisoner to challenge
his federal conviction or sentence under Section 2241. Specifically, 28 U.S.C. § 2255(e)
contains a “savings clause” which authorizes a federal prisoner to file a Section 2241 petition
where the remedy under Section 2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). See Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012)
(“‘Inadequate or ineffective’ means that ‘a legal theory that could not have been presented
under § 2255 establishes the petitioner’s actual innocence.’”) (citing Taylor v. Gilkey, 314 F.3d
832, 835 (7th Cir. 2002); see also United States v. Prevatte, 300 F.3d 792, 798–99 (7th Cir. 2002).
The Seventh Circuit construed the savings clause in In re Davenport, 147 F.3d 605, 611 (7th Cir.
1998): “A procedure for postconviction relief can be fairly termed inadequate when it is so
configured as to deny a convicted defendant any opportunity for judicial rectification of so
fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.”
Following Davenport and its progeny, the Seventh Circuit has enunciated a three-part
test for determining whether § 2255 is inadequate or ineffective, thus triggering the savings
clause:
(1) the federal prisoner must seek relief based on a decision of statutory
interpretation (as opposed to a decision of constitutional interpretation,
which the inmate could raise in a second or successive § 2255 motion);
(2) the statutory rule of law in question must apply retroactively to cases on
collateral review and could not have been invoked in a first § 2255 motion;
and
(3) a failure to afford the prisoner collateral relief would amount to an error
“grave enough” to constitute “a miscarriage of justice.”
Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (citing Montana v. Cross, 829 F.3d 775, 783
(7th Cir. 2016); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)). See also Chazen v. Marske,
938 F.3d 851, 856 (7th Cir. 2019); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). Thus,
“there must be some kind of structural problem with section 2255 before section 2241
becomes available. In other words, something more than a lack of success with a section 2255
motion must exist before the savings clause is satisfied.” Webster v. Daniels, 784 F.3d 1123,
1136 (7th Cir. 2015).
ANALYSIS
Here, McGarity seeks to challenge his conviction under § 2241, and the savings clause
does not apply because none of McGarity’s claims are based on a retroactive decision of
statutory interpretation that he could not previously have brought up on appeal or in his
§ 2255 petition. Accordingly, these claims must be dismissed pursuant to the Court’s Rule 4
preliminary review. The Court finds as moot McGarity’s pending motions regarding IFP
status and counsel and dismisses his petition with prejudice.
CONCLUSION
McGarity’s Petition for writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 1) is
DISMISSED with prejudice. The Clerk of Court is directed to enter judgment accordingly.
If McGarity wishes to appeal the dismissal of this action, his notice of appeal must be
filed with this Court within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1)(B). A
motion for leave to appeal in forma pauperis (“IFP”) must set forth the issues McGarity plans
to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If McGarity does choose to appeal and is
allowed to proceed IFP, he will be liable for a portion of the $505.00 appellate filing fee (the
amount to be determined based on his prison trust fund account records for the past six
months) irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and
timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 60-day
appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than
twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot be
extended. Other motions, including a Rule 60 motion for relief from a final judgment, do not
toll the deadline for an appeal.
It is not necessary for McGarity to obtain a certificate of appealability from this
disposition of his Section 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: June 30, 2021 Ta WM location?
NANCY J. ROSENSTENGEL
Chief U.S. District Judge