United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER DENYING HABEAS
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE.
Fredrico Jervusio Jones is an inmate currently confined at
the Federal Medical Center (“FMC”) - Lexington in
Lexington, Kentucky. Through counsel, Jones filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241, seeking relief from his sentence. [R. 1] The Respondent
has filed his response to the petition [R. 10], and Jones has
filed a reply. [R. 14] Thus, this matter is ripe for review.
2012, pursuant to a plea agreement with the United States,
Jones pled guilty in the United States District Court for the
Northern District of Georgia to one count of attempt to
commit armed robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a) (Count One) and one count of aiding and
abetting the use and carrying of a firearm in relation to a
crime of violence (referring to the attempted Hobbs Act armed
robbery charged in Count One) in violation of 18 U.S.C.
§ 924(c) (Count Two). On October 11, 2012, Jones was
sentenced to a term of imprisonment of 30 months as to Count
One and 150 months as to Count Two, to be served consecutive
to Count One, for a total term of imprisonment of 180 months.
In September 2014, the district court granted the United
States' motion for reduction of sentence pursuant to Rule
35 of the Federal Rules of Criminal Procedure and reduced
Jones' total sentence to a period of 132 months
incarceration. [R. 1 at pp. 2-4; R. 10 at p. 2]
March 2015, the United States Court of Appeals for the
Eleventh Circuit dismissed Jones' appeal from his
criminal Judgment as untimely. In June 2016, Jones filed a
pro se motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 in the district
court that sentenced him, arguing that the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), which invalidated the residual clause
of the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(2)(B), also invalidated the residual
clause of 18 U.S.C. § 924(c)(3)(B). Thus, Jones argued
that his Count One conviction for attempted Hobbs Act robbery
no longer qualifies as a predicate “crime of
violence” for purposes of his Count Two § 924(c)
conviction. The district court denied Jones' motion,
because: (1) Jones' plea agreement contained a limited
waiver of appeal that expressly waived his right to
collaterally attack his conviction and sentence in a
post-conviction proceeding (including via a § 2255
motion); (2) Johnson does not apply to §
924(c)'s residual clause; and (3) even if
Johnson did apply to § 924(c)'s residual
clause, attempted Hobbs Act robbery is a “crime of
violence” under the “use-of-force” clause
of § 924(c)(3)(A), thus Jones' § 924(c)
conviction remains valid under § 924(c)(3)(A).
United States v. Jones, No. 4:12-cr-9-HLM-WEJ-4
(N.D.Ga. 2012) at [R. 323].
has now filed a § 2241 petition with this Court,
reasserting similar arguments to those he raised in his
original § 2255 motion. Once again, Jones argues that
his Count One conviction for Hobbs Act robbery is no longer a
valid predicate offense for his Count Two § 924(c)
conviction for possession of a firearm in furtherance of a
“crime of violence, ” this time relying on the
United States Supreme Court decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). Jones has also filed a
Notice of Supplemental Authority [R. 15] seeking to rely on
the Supreme Court's recent decision in United States
v. Davis, No. 18-431, 2019 WL 2570623, at *13 (U.S. June
24, 2019), holding that the residual clause of 18 U.S.C.
§ 924(c)(3)(B) is unconstitutionally vague. According to
Jones, because the residual clause of 18 U.S.C. §
924(c)(3)(B) is invalid, his attempted Hobbs Act robbery
conviction no longer qualifies as a “crime of
violence” for purposes of his 18 U.S.C. § 924(c)
conviction, thus he is “actually innocent” of his
Count Two § 924(c) conviction. He seeks to bring his
claim in this § 2241 petition via the “savings
clause” of 28 U.S.C. § 2255(e).
having thoroughly reviewed the petition, the response filed
by Respondent, and Jones' reply, as well as the Supreme
Court's decision in Davis, the Court must deny
initial matter, Jones challenges the legality of his
convictions in his habeas petition. While a federal prisoner
may challenge the legality of his convictions and sentence in
a 28 U.S.C. § 2255 motion before the sentencing court,
he generally may not do so in a § 2241 petition. See
United States v. Peterman, 249 F.3d 458, 461 (6th Cir.
2001). A § 2241 petition is typically only a vehicle for
challenges to actions taken by prison officials that affect
the manner in which the prisoner's sentence is being
carried out, such as computing sentence credits or
determining parole eligibility. See Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009). A habeas
corpus petition under 28 U.S.C. § 2241 may not be used
for this purpose because it does not function as an
additional or alternative remedy to the one available under
§ 2255. Hernandez v. Lamanna, 16 Fed.Appx. 317,
320 (6th Cir. 2001).
“savings clause” of 28 U.S.C. § 2255(e)
provides a narrow exception to this rule where § 2255 is
structurally “inadequate or ineffective” to seek
relief. The exception does not apply simply because that
remedy under § 2255 is no longer available, whether
because the prisoner did not file a § 2255 motion, the
time to do so has passed, or the motion was denied on
substantive grounds. Copeland v. Hemingway, 36
Fed.Appx. 793, 795 (6th Cir. 2002). Rather, to properly
invoke the savings clause, the petitioner must be asserting a
claim that he is “actually innocent” of the
underlying offense by showing that, after the
petitioner's conviction became final, the United States
Supreme Court issued a retroactively applicable decision
re-interpreting the substantive terms of the criminal statute
under which he was convicted in a manner that establishes
that his conduct did not violate the statute, Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or
establishing that - as a matter of statutory interpretation -
a prior conviction used to enhance his or her federal
sentence no longer qualifies as a valid predicate offense.
Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir.
Jones challenges the validity of his conviction of aiding and
abetting the use of carrying a firearm during and in relation
to a crime of violence (Count Two) in violation of 18 U.S.C.
§ 924(c). Section 924(c) provides for heightened
criminal penalties for using or carrying a firearm
“during and in relation to, ” or possessing a
firearm “in furtherance of, ” any federal
“crime of violence or drug trafficking crime.”
§ 924(c)(1)(A). Pursuant to § 924(c)(3), a
“crime of violence” is defined as “an
offense that is a felony” and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3). The first subpart of this
definition, § 924(c)(3)(A), is known as the
“elements” or “use-of-force” clause.
The second subpart, § 924(c)(3)(B), is known as the
“residual” clause. According to Jones, his Count
One conviction of attempt to commit Hobbs Act
robbery does not qualify as a “crime of violence”
under the elements clause of § 924(c)(3)(A). Jones