United States District Court, E.D. Kentucky, Southern Division, London
TIMOTHY W. HALL, Petitioner,
GREGORY KIZZIAH, Warden, Respondent.
OPINION & ORDER
E. Wier United States District Judge.
W. Hall, an inmate at USP McCreary in Pine Knot, Kentucky,
filed a pro se petition under 28 U.S.C. § 2241.
DE #1. Warden Kizziah responded, see DE #14, and
Hall replied, see DE #19. This matter is thus ripe
for decision. Because Hall has not shown that his remedy
under 28 U.S.C. § 2255 is legally inadequate or
ineffective, he may not seek relief via § 2241, and the
Court dismisses his petition.
2014, a Southern District of Florida jury convicted Hall of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). See United States v. Timothy Wesley
Hall, No. 9:14-cr-80060-DPG, at E.C.F. No. 77 (S.D. Fla.
2014). At sentencing, the district court determined that Hall
was subject to sentence enhancement under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e); it found that
several of Hall's prior convictions qualified as ACCA
predicates, including 1987 and 1988 convictions for
possession with intent to sell cocaine in West Palm Beach,
Florida (in violation of Fla. Stat. § 893.13) and a 2009
conviction for aggravated battery with a firearm in Riviera
Beach, Florida (in violation of Fla. Stat. § 784.021).
See id., at E.C.F. No. 124, pp. 29-30; see
also DE #16-1 (Final Presentence Investigation Report
(PIR)) at ¶¶ 16, 24-25, 49; DE ##14-6, 14-7, 14-8
(Florida Judgments). The court ultimately sentenced Hall to 262
months' incarceration. See No.
9:14-cr-80060-DPG, at E.C.F. No. 101.
Eleventh Circuit summarily affirmed Hall's conviction and
sentence on direct appeal. See United States v.
Hall, 618 Fed.Appx. 657 (11th Cir. 2015). Hall then
filed a motion to vacate his sentence under § 2255,
arguing, based on Johnson v. United States, 135
S.Ct. 2551 (2015), that invalidation of the ACCA's
residual clause rendered his enhanced sentence
unconstitutional. See Hall, No. 9:14-cr-80060-DPG,
at E.C.F. No. 148. The district court denied the sought
relief, concluding that “none of [Hall's] three
ACCA predicate convictions fall under the
now-unconstitutional residual clause.” See
id., at E.C.F. No. 149, p. 4. Though Hall appealed the
denial of his § 2255 motion, the Eleventh Circuit
dismissed the appeal on March 6, 2018 for failure to
prosecute. See id., at E.C.F. No. 159.
now pursues relief via § 2241, attempting to fit within
the narrow § 2255(e) “savings
clause.” DE #1. He challenges the three
here-identified ACCA predicate offenses, arguing that his
cocaine possession convictions violated the Fifth
Amendment's double jeopardy prohibition and that he does
not actually have a valid aggravated assault conviction.
Petitioner further contends, relying in part on the Supreme
Court's clarification of the categorical and modified
categorical approaches to ACCA predicate analyses in
Mathis v. United States, 136 S.Ct. 2243 (2016), that
the three convictions are not ACCA-qualifying offenses.
Hall's failure to demonstrate inability to raise these
arguments earlier, however, is fatal to his petition and
prisoners generally may not use § 2241 to collaterally
attack their sentences, as Hall here seeks to do. See
United States v. Peterman, 249 F.3d 458, 461 (6th Cir.
2001). Section 2255 is the proper vehicle for collaterally
asserting perceived detention illegality; § 2241,
rather, is reserved “for claims challenging the
execution or manner in which the sentence is served[,
]” such as those involving sentence credit computation
issues. Id. A § 2241 petition 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).
narrow exception to this rule is the “savings
clause” of § 2255(e). The savings clause permits a
petitioner to assert a sentencing error claim via § 2241
only if it “appears that the remedy by [§ 2255]
motion is inadequate or ineffective to test the legality of
[the prisoner's] detention.” § 2255(e);
see Truss v. Davis, 115 Fed.Appx. 772, 773-74 (6th
Cir. 2004). Critically, a § 2255 motion is not
“inadequate or ineffective” simply because the
prisoner's time to file a § 2255 motion has passed,
he did not file a § 2255 motion, or a previous §
2255 motion failed. See Copeland v. Hemingway, 36
Fed.Appx. 793, 795 (6th Cir. 2002); Taylor v.
Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (holding that
§ 2241 is available “only when a structural
problem in § 2255 forecloses even one round of effective
collateral review”). In other words, § 2241 does
not provide prisoners another “bite at the
apple.” Hernandez, 16 Fed.Appx. at 360.
“It is the petitioner's burden to establish that
his remedy under Section 2255 is inadequate or
ineffective.” Martin v. Perez, 319 F.3d 799,
803 (6th Cir. 2003) (citation and footnote omitted).
Hall's § 2255 and subsequent appeal efforts were
unsuccessful as a practical matter, due to procedural
failures, does not mean that the § 2255 remedy itself
was or is legally inadequate or ineffective. See DE
#1 at 4 (arguing that, given his § 2255 motion's
dismissal on procedural grounds, he “did an ineffective
job” pursuing relief under that section and thus falls
within the savings clause); Copeland, 36 Fed.Appx.
at 795 (“A prisoner's remedy under § 2255 is
not inadequate or ineffective merely because the prisoner is
time-barred or otherwise procedurally barred from seeking
relief under § 2255[.]”). Rather, to demonstrate
that the § 2255 remedy is inadequate or ineffective
within the meaning of § 2255(e), a petitioner must
satisfy certain specific conditions.
Circuit, “[w]hen seeking to petition under § 2241
based on a misapplied sentence, the petitioner must show[,
]” among other things, “a case of statutory
interpretation . . . that is retroactive and could not have
been invoked in the initial § 2255 motion[.]”
Hill v. Masters, 836 F.3d 591, 595 (6th Cir. 2016);
accord Id. at 600 (requiring “a subsequent,
retroactive change in statutory interpretation by the Supreme
Court”); see also Wright v. Spaulding, 939
F.3d 695, 703 (6th Cir. 2019) (clarifying that “in this
circuit, a federal prisoner who has already filed a §
2255 motion and cannot file another one cannot access §
2241 just because a new Supreme Court case hints his
conviction or sentence may be defective . . . [T]he prisoner
must also show that binding adverse precedent (or some
greater obstacle) left him with no reasonable opportunity to
make his argument earlier, either when he” appealed his
conviction or initially sought § 2255 relief) (emphases,
quotation marks, and citations omitted).
Hall's sentencing challenges meets the
Hill/Wright criteria for savings clause
qualification. First, neither the assertion that his
predicate drug felony convictions violated the double
jeopardy bar, nor the cursory contention that he, in fact,
had no valid prior aggravated assault conviction, is based on
any intervening Supreme Court case of statutory
interpretation. Nor does he argue that binding adverse
precedent-or any greater obstacle-prevented him from earlier
making these arguments, whether when he was convicted of the
predicate offenses, at the time of his federal sentencing or
relevant direct appeal, or in his initial § 2255
motion. Hall thus “had several
opportunities” to argue these claims, “free of
any procedural impediments or hostile precedents.”
Wright, 939 F.3d at 706. That he did not do so, or
that he did so unsuccessfully, does bring him within savings
claim that the district court erred in failing to analyze his
ACCA predicates under the modified categorical approach
similarly fails. Without explicitly arguing that §
893.13 or § 784.021 is divisible, Hall maintains that
the modified categorical approach required the district court
to substantiate the ACCA predicate convictions under these
sections with Sheparddocuments. See DE #1-2
(arguing that the § 893.13 convictions “were never
proven with legal document only my [PIR]”); DE #1 at 7
(referring to the § 893.13 convictions and asserting
that “[t]he government [failed] to do the modified
categorical approach by consulting the trial records-charging
document, plea agreement, transcripts of plea”);
id. at 7-8 (discussing the § 784.021 conviction
and stating that “[o]nce again the government only
use[d] my [PIR] . . . not the Shepard approve[d]
document” and that “[t]he government did not do
the modified categorical approach”). To the extent Hall
bases this claim on Shepard itself-a 2005 case-he
had ample opportunity to raise it at the time of the 2014
§ 922(g) sentencing, subsequent direct appeal, and 2015
initial § 2255 motion. See, e.g., No.
9:14-cr-80060-DPG, at E.C.F. No. 101 (December 2014 Final
Judgment). As discussed, “[t]hat he failed to seize
[such opportunity] does not mean that § 2255 was
‘inadequate or ineffective' to test his
sentence.” Wright, 939 F.3d at
to the extent that Hall bases this claim on
Mathis's 2016 (post-sentencing, appeal, and
initial § 2255) clarification of the categorical and
modified categorical approaches,  he did not need the case to
raise the claim. An inability to specifically cite
Mathis at the time of Hall's sentencing, appeal,
or § 2255 effort is insufficient to demonstrate that
Hall had no reasonable prior opportunity to argue for
application of the modified categorical approach. See
Wright, 939 F.3d at 705 (“To be sure, Wright could
not cite Mathis, specifically, before it existed.
But a claim for habeas relief is more than the talismanic
force of a new case name.”). The case merely clarified-
but did not create-the categorical or modified categorical
approaches. “A new case ...