The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
AKIBA MATTHEWS, )
)
Petitioner, )
v. ) Civil Action No. 5:22-00129
)
WARDEN, )
)
Respondent. )
PROPOSED FINDINGS AND RECOMMENDATION
Pending before the Court is Petitioner’s Petition Under 28 U.S.C. § 2241 for Writ of
Habeas Corpus by a Person in Federal Custody.1 (Document No. 1.) By Standing Order, this
matter was referred to the undersigned United States Magistrate Judge for the submission of
proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). (Document No. 3.) Having examined Petitioner’s Section 2241 Petition, the
undersigned finds, and hereby respectfully recommends, that Petitioner’s Petition should be
dismissed.
FACT AND PROCEDURE
A. Criminal Action No. 1:07-cr-581:
On May 23, 2008, following a three-day jury trial, Petitioner was convicted in the District
of Maryland of one count of Distribution and Possession of Narcotics in violation of 21 U.S.C §
841(a)(1)(C) (Count One), one count of Possession of a Firearm During and In Relation to a
Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two), and one count of
1 Because Petitioner is acting pro se, the documents which he has filed are held to a less
stringent standard than if they were prepared by a lawyer and therefore construed liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1). United
States v. Matthews, Case No. 1:07-cr-00581 (D.Md. August 20, 2008), Document Nos. 59, 60,
66, 70). On August 20, 2008, the District Court sentenced Petitioner “to be imprisoned for two
hundred forty (240) months as to Count 1, sixty (60) months as to Count 2 consecutive to Counts
1 and 3, and three hundred (300) months as to Count 3 concurrent with Count 1, for a total term
of 360 months.” Id., Document No. 84. The District Court further imposed a three-year term of
supervised released and a $300 special assessment. Id.
On August 27, 2008, Petitioner filed a Notice of Appeal. Id., Document No. 83. As
grounds for appeal, Petitioner argued the District Court: (1) Erred by denying Petitioner’s motion
to dismiss the indictment; (2) Erred by refusing to suppress the evidence seized during the stop;
and (3) Abused its discretion in sentencing Petitioner. Id., Document No. 95-2. By Per Curiam
Opinion entered on April 13, 2010, the Fourth Circuit Court of Appeals affirmed Petitioner’s
conviction and sentence. Id.
On November 18, 2011, Petitioner filed a Memorandum of Law in Support of Motion to
Dismiss Indictment. Id., Document No. 105. On November 21, 2011, the District Court denied
Petitioner’s Motion. Id., Document No. 106. On January 17, 2012, Petitioner filed his Notice of
Appeal. Id., Document No. 107. By Per Curiam Opinion entered on May 23, 2012, the Fourth
Circuit Court of Appeals affirmed the judgment of the District Court. Id., Document No. 110.
On September 16, 2020, Petitioner filed a Motion to Reduce Sentence Pursuant to
Section 3582(c). Id., Document No. 129. By Order entered on March 1, 2021, the District Court
granted a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) and reduced Petitioner’s
sentence to 20 years. Id., Document No. 139. Petitioner filed a Motion for Compassionate
Release Pursuant to Section 3582 on April 23, 2021, and the District Court denied Petitioner’s
Motion on the same day. Id., Document Nos. 40 and 144. On July 6 and 12, 2021, Petitioner
filed Renewed Motions for Compassionate Release. Id., Document Nos. 149 and 151. By Order
entered on August 31, 2021, the District Court denied Petitioner’s renewed Motions. Id.,
Document No. 153. On September 17, 2021, Petitioner filed a Notice of Appeal. Id., Document
No. 154. By Per Curiam Opinion entered on December 20, 2021, the Fourth Circuit Court of
Appeals affirmed the judgment of the District Court. Id., Document No. 158.
On October 30, 2023, Petitioner filed a “Motion for Relief from Judgment Pursuant to 18
U.S.C. § 3582(c) and Section 603(B) of the First Step Act.” Id., Document No. 160. On
December 28, 2023, the United States filed its Response in Opposition. Id., Document No. 166.
On February 9, 2024, Petitioner filed his Reply. Id., Document No. 168. This Motion is currently
pending.
B. First Section 2255 Motion:
On July 8, 2011, Petitioner filed in the District of Maryland a Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. § 2255. Id., Document Nos. 97 and 97-1. As grounds
for relief, Petitioner argued he was denied effective assistance of counsel regarding the
following: (1) “[F]ailing to move for judgment of acquittal as to Count One based on
insufficiency of the evidence that defendant distributed heroin;” (2) “[F]ailing to object to Count
Two of the indictment being broadened by the evidence offered by the Government at trial and
constructively amended by the District Court’s instruction to the jury that it could convict on
distribution or possession with intent to distribute;” and (3) “[F]ailing to investigate whether the
indictment was returned publicly by the grand jury in open court pursuant to the Federal Rules of
Criminal Procedure Rule 6(f).” Id. The United States filed its Response in Opposition on
September 13, 2011. Id., Document No. 102. On November 14, 2011, Petitioner filed his Reply.
Id., Document No. 104. By Order entered on November 14, 2012, the District Court denied
Petitioner’s Section 2255 Motion. Id., Document No. 114. On January 22, 2013, Petitioner filed
a Notice of Appeal. Id., Document No. 115. By Order entered on May 29, 2013, the Fourth
Circuit denied Petitioner’s motion for certificate of appealability and dismissed his appeal. Id.,
Document No. 120. Petitioner filed a petition for rehearing and rehearing en banc, which was
denied by the Fourth Circuit on September 20, 2013. Id., Document No. 122.
C. Second Section 2255 Motion:
On March 4, 2013, Petitioner filed in the District of Maryland his second Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. Id., Document Nos. 118 and
118-1. As a ground for relief, Petitioner argued he was “illegally sentenced.” Id. By Order
entered on March 29, 2013, the District Court denied Petitioner’s Section 2255 Motion as
successive. Id., Document No. 119.
D. Instant Section 2241 Petition:
On March 10, 2022, Petitioner filed his instant Section 2241 Petition challenging the
validity of his conviction and sentence as to Count Two. (Civil Action No. 5:22-0119, Document
No. 1.) Petitioner contends that he “has completely served the sentence imposed on Counts One
and Three, and he is presently in custody only on the sentence imposed on Count Two.” (Id., p.
2.) Petitioner concludes that his “current detention violates both the U.S. Constitution and laws
of the United States.” (Id.) Petitioner complains that he was indicted for “knowingly and
unlawfully possessing a firearm, specifically, a Ruger, Model P94, .40 S&W caliber handgun,
serial number 34153516, during and in relation to a drug trafficking crime, specifically, the
possession with intent to distribute a quantity or mixture or substance containing a detectable
amount of heroin, as alleged in Count One of this Indictment.” (Id.) Petitioner asserts that the
“Court imposed a five-year term of imprisonment upon this count, despite the fact that the
conduct alleged is proscribed nowhere in 18 U.S.C. § 924(c).” (Id.) Petitioner asserts that “[t]he
indictment in the present case charged Petitioner with possessing a firearm during and in relation
to a drug trafficking crime – a non-offense.” (Id., p. 4.) Petitioner explains that he believes the
indictment was “fatally flawed by charging a non-offense.” (Id., p. 5.) Petitioner claims that
“where no federal statute proscribes the conduct charged against a criminal defendant, federal
courts are completely without jurisdiction to order imprisonment or detention of such a person.”
(Id., p. 3.) Petitioner argues “Congress has created no statute making the conduct alleged in
Count Two of the Indictment a federal offense.” (Id.) Therefore, Petitioner concludes that he is
“currently imprisoned for conduct that does not constitute a federal offense and his continued
confinement . . . violates the 5th and 8th Amendments of the U.S. Constitution and the Federal
Non-Detention Act, 18 U.S.C. 4001(a).” (Id.)
ANALYSIS
In considering an inmate’s application for habeas relief under 28 U.S.C. § 2241, the
Court must consider whether the inmate is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct.
175, 177, 46 L.Ed.2d 162 (1975). The Court notes that Section 2241 is merely a general grant of
habeas corpus authority. See Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003). More
specific grants of habeas corpus authority are found in 28 U.S.C. § 2254 (state prisoners) and 28
U.S.C. § 2255 (federal prisoners). See Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir. 2004).
Section 2255 is the exclusive remedy for testing the validity of federal judgments and sentences
unless there is a showing that the remedy is inadequate or ineffective. In Re Jones, 226 F.3d 328,
333 (4th Cir. 2000), abrogated on other grounds by, Jones v. Hendrix, 599 U.S. 465, 143 S.Ct.
1857, 216 L.Ed.2d 471 (2023). The remedy under Section 2241 is not an additional, alternative
or supplemental remedy to that prescribed under Section 2255. Rather, Section 2241 applies to
circumstances factually quite different from those properly considered under Section 2255.
While the validity of Petitioner’s conviction and/or sentence is in issue under Section 2255,
matters pertaining to Petitioner’s “commitment or detention” are properly the subject under 28
U.S.C. § 2241. See 28 U.S.C. § 2242. Thus, in addition to those very narrow circumstances
under which Section 2255 is “inadequate and ineffective,” issues arising out of the allegedly
unlawful or incorrect computation of Petitioner’s sentence and resulting in an unconstitutional
restraint upon his liberty are properly considered under 28 U.S.C. § 2241. Allegations that a
federal conviction or sentence is invalid are therefore appropriately considered under Section
2255, and allegations respecting the execution of a federal sentence are properly considered
under Section 2241. “A section 2241 petition that seeks to challenge the validity of a federal
sentence must either be dismissed or construed as a section 2255 motion.” Pack v. Yusuff, 218
F.3d 448, 452 (5th Cir. 2000).
In view of the nature of the claims, the undersigned finds Petitioner’s claims are ones
properly considered under Section 2255, not Section 2241. Essentially, Petitioner challenges the
validity of his conviction and sentence as imposed by the District of Maryland. Specifically,
Petitioner argues that his underlying indictment was “fatally flawed by charging a non-offense”
concerning Count Two. Petitioner is clearly challenging the validity of his conviction and
sentence, not the manner in which his sentence is being executed. Accordingly, the undersigned
will briefly consider Petitioner’s claims under Section 2255 for the sole purpose of determining
whether the instant Section 2241 Petition should be (1) dismissed, or (2) construed as a Section
2255 Motion and transferred to the appropriate jurisdiction. See Pack v. Yusuff, 218 F.3d 448,
452 (5th Cir. 2000).
It is quite clear from the language in the first paragraph of 28 U.S.C. § 2255 that Motions
thereunder must be filed in the sentencing Court. The first paragraph of 28 U.S.C. § 2255
provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or the laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
(Emphasis added.) Viewing Petitioner’s Petition as a Section 2255 Motion, it is clear that this
District Court lacks jurisdiction to consider it. Rather, jurisdiction is properly in the District of
Maryland. While a Section 2255 Motion filed in a Court other than the sentencing Court should
be transferred to the Court which sentenced the petitioner, Petitioner’s instant Petition should not
be construed and transferred as a Section 2255 Motion because Petitioner has proceeded under
Section 2255 in the sentencing Court at least once before and has not obtained
certification/authorization to file a second or successive Motion from the Fourth Circuit Court of
Appeals.2
2 Under the Antiterrorism and Effective Death Penalty Act [AEDPA] Amendments to 28 U.S.C.
§ 2255 “[a] second or successive motion must be certified as provided in section 2244 by a panel
of the appropriate court of appeals.” To obtain certification from the Court of Appeals, the
Petitioner must demonstrate that the Motion contains:
(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 factfinder would have found the petitioner 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. Nevertheless, this Court need not reach the issue of whether Petitioner’s
Petition actually contains newly discovered evidence or presents a new rule of constitutional law.
“[B]efore a prisoner can pursue a qualifying ‘second or successive’ 2255 Petition, he must obtain
authorization from the court of appeals.” 28 U.S.C. § 2244(b)(3)(A).
To the extent Petitioner is claiming that Section 2255 is inadequate or ineffective, the
undersigned will consider his claims under Section 2241. Although a Section 2255 Motion is the
proper vehicle for challenging a federal conviction or sentence, Section 2241 may be used by a
federal prisoner to challenge the legality of his conviction or sentence if he can satisfy the
mandates of the Section 2255’s “savings clause.” Section 2255 contains a “savings clause” that
allows an individual to file a petition challenging his conviction or sentence in a venue other than
the sentencing court if the petitioner can establish that his remedy under Section 2255 is
“inadequate or ineffective.” 28 U.S.C. § 2255(e)(“An application for a writ of habeas corpus in
behalf of a petitioner who is authorized to apply for relief by motion pursuant to this section,
shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to
the court which sentenced him, or that such court has denied him relief, unless it also appears
that the remedy by motion is inadequate or ineffective to test the legality of his
detention.”)(emphasis added). The Petitioner bears the burden of showing the inadequacy or
ineffectiveness of a Section 2255 Application. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979). The fact that relief under Section 2255 is barred procedurally or by the gatekeeping
requirements of Section 2255 does not render the remedy of Section 2255 “inadequate or
ineffective.” Young v. Conley, 128 F.Supp.2d 354, 357 (S.D.W.Va.)(Chief Judge Haden), aff’d,
291 F.3d 257 (4th Cir. 2001), cert. denied, 537 U.S. 938, 123 S.Ct. 46, 154 L.Ed.2d 242 (2002).
Over the years, a circuit split resulted from courts struggling with determining when Section
2255 was “inadequate or ineffective” such to permit a petitioner to proceed under the “savings
clause.” See Jones v. Hendrix, 8 F.4th 683, 686-87 (8th Cir. 2021)(noting the circuit split over the
question whether a change in case law, combined with the successive motions bar, makes
Section 2255’s remedy inadequate or ineffective as to allow a petitioner to seek relief under
Section 2241). Recently, the United States Supreme Court addressed the issue in Jones v.
Hendrix holding that “§ 2255(e)’s savings clause does not permit a prisoner asserting an
intervening change in statutory interpretation to circumvent AEDPA’s restrictions on second or
successive § 2255 motions by filing a § 2241 petition.” Jones v. Hendrix, 599 U.S. 465, 143
S.Ct. 1857, 216 L.Ed.2d 471 (2023).
Prior to Jones v. Hendrix, the Fourth Circuit stated that Ҥ 2255 is inadequate and
ineffective to test the legality of a conviction when: (1) at the time of 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. In a panel opinion, the Fourth Circuit
extended the application of the savings clause to sentencing challenges. United States v.
Wheeler, 886 F.3d 415 (4th Cir. March 28, 2018). For purposes of sentencing challenges, the
Wheeler Court established a new savings clause test stating that Section 2255 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 motion; and (4) due to
this retroactive change, the sentence now presents an error sufficiently grave to be deemed a
fundamental defect.” Id. at 429. “The Supreme Court’s recent decision in Jones v. Hendrix
rejected the foundation of the Fourth Circuit’s reasoning in interpreting the saving clause and
abrogated the standards in In re Jones and Wheeler.” Barrie v. United States, 2023 WL 5044977,
* 3 (E.D.Va. Aug. 8, 2023); also see Johnson v. Dunbar, 2023 WL 5211052, * 3 (D.S.C. July 12,
2023)(finding that “Jones v. Hendrix abrogated the holdings In re Jones and Wheeler”), report
and recommendation adopted, 2023 WL 5207981 (D.S.C. Aug. 14, 2023). As stated above, the
Supreme Court clarified in Jones v. Hendrix that “§2255(e)’s saving clause does not permit a
prisoner asserting an intervening change in statutory interpretation to circumvent AEDPA’s
restrictions on second or successive § 2255 motions by filing a § 2241 petition.” Jones v.
Hendrix, 599 U.S. at 465, 143 S.Ct. at 1860. The Supreme Court emphasized that the savings
clause does not provide a means for a petitioner to evade the limitations of Section 2255(h) such
that a petitioner’s inability to satisfy the requirements of Section 2255(h) equals a determination
that Section 2255 is “inadequate or ineffective” in satisfaction of the savings clause. Id., 599 U.S.
at 479, 143 S.Ct. at 1869(“The inability of a prisoner with a statutory claim to satisfy those
conditions [of Section 2255(h)] does not mean that he can bring his claim in a habeas petition
under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over
error correction in his case.”) The Supreme Court stated that the “[b]asic principles of statutory
interpretation require that we construe the saving clause and § 2255(h) in harmony, not set them
at cross-purposes.” Id., 599 U.S. at 478, 143 S.Ct. at 1868. The Supreme Court further explained
that when Congress enacted Section 2255, the savings clause covered “unusual circumstances”
where “it is impossible or impracticable for a prisoner to seek relief from the sentencing court.
The clearest such circumstance is the sentencing court’s dissolution; a motion in a court that no
longer exists is obviously ‘inadequate or ineffective’ for any purpose.” Id. Additionally, the
savings clause “might also apply when ‘it is not practicable for a prisoner to have his motion
determined in the trial court because of his inability to be present at the hearing, or for other
reasons.’” Id., 599 U.S. at 475, 143 S.Ct. at 1866(citation omitted). Finally, the Supreme Court
reiterated that the savings clause “does not displace § 2241 when a prisoner challenges ‘the
legality of his detention’ without attacking the validity of his sentence.” Id., 599 U.S. at 475, 143
S.Ct. at 1867(emphasis in original).
Based upon the foregoing, the undersigned concludes Petitioner has not demonstrated and
cannot demonstrate that Section 2255 is inadequate or ineffective such that he can resort to
Section 2241. In his Petition, Petitioner completely fails to explain how his claim challenging the
validity of his conviction and sentence regarding Count Two satisfies the criteria of the savings
clause. As stated above, the fact that relief under Section 2255 is barred procedurally or by the
gatekeeping requirements of Section 2255 does not render the remedy of Section 2255
“inadequate or ineffective.” See Jones v. Hendrix, 599 U.S. at 480, 143 S.Ct. at 1869(“The
inability of a prisoner with a statutory claim to satisfy those conditions [of Section 2255(h)] does
not mean that he can bring his claim in a habeas petition under the saving clause. It means that he
cannot bring it at all.”); also see Barfield v. Streeval, 2023 WL 5318468 (4th Cir. Aug. 18,
2023)(dismissing petitioner’s Section 2241 petition challenging the validity of his conviction in
light of the Supreme Court’s Jones v. Hendrix decision); Folk v. Gibson, 2023 WL 5018422, * 2
(M.D.Penn. Aug. 7, 2023)(citing Jones v. Hendrix in dismissing petitioner’s Section 2241
challenge to his conviction based upon Rowe). Nor has Petitioner identified any “unusual
circumstances” that would make it “impossible or impracticable” to seek relief from the
sentencing court. See Jones v. Hendrix, 599 U.S. at 478, 143 S.Ct. at 1868; also see Joseph v.
Dunbar, 2023 WL 5093488 (6th Cir. Aug. 8, 2023)(stating that Jones v. Hendrix makes “clear
that [a petitioner] cannot use § 2241 as ‘an end-run around’ § 2255(h)’s rules”); Walton v.
Warden, 2023 WL 5011933 (2nd Cir. Aug. 7, 2023)( petitioner failed to “suggest that ‘unusual
circumstances’ render it ‘impossible or impracticable for [him] to seek relief from the sentencing
court.’”); Davis v. Streeval, 2023 WL 4828506, * 2 (W.D.Va. July 27, 2023)(“[A] prisoner
cannot use § 2241 to accomplish what he could not do in his request for a second motion under §
2255.”). Based upon the foregoing, Petitioner has failed to sustain his burden of showing the
inadequacy or ineffectiveness of a Section 2255 Motion and his Section 2241 Petition should be
dismissed without prejudice for lack of subject matter jurisdiction. See Clark v. Leu, 2023 WL
4676854, at *1 (4th Cir. July 21, 2023)(citing Ali v. Hogan, 26 F.4th 587, 600 (4th Cir.
2022))(recognizing that dismissal of a Section 2241 petition for lack of subject matter
jurisdiction must be a dismissal without prejudice).
PROPOSAL AND RECOMMENDATION
Based upon the foregoing, it is therefore respectfully PROPOSED that the District Court
confirm and accept the foregoing factual findings and legal conclusions and RECOMMENDED
that the District Court DISMISS without prejudice Petitioner’s Section 2241 Petition
(Document No. 1) and REMOVE this matter from the Court’s docket.
The Petitioner is hereby notified that this “Proposed Findings and Recommendation” is
hereby FILED, and a copy will be submitted to the Honorable United States District Judge
Frank W. Volk. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B),
and Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14)
days (filing of objections) and three (3) days (if received by mail) from the date of filing of these
Findings and Recommendation within which to file with the Clerk of this Court, written
objections, identifying the portions of the Findings and Recommendation to which objection is
made, and the basis of such objection. Extension of this time period may be granted for good
cause shown.
Failure to file written objections as set forth above shall constitute a waiver of de novo
review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S. Ct.
466, 88 L. Ed. 2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S. Ct. 2395, 81 L. Ed. 2d
352 (1984). Copies of such objections shall be served on opposing parties, District Judge Volk,
and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to
Petitioner, who is acting pro se.
Date: September 6, 2024. Sol,
eB ff Omar J. Aboulhosn
& mrs : S ¥y United States Magistrate Judge
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