United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION HABEAS
CORPUS 28 U.S.C. § 2241
K. LARKINS III UNITED STATES MAGISTRATE JUDGE.
Herman Lee Tate, a federal prisoner presently confined at the
United States Penitentiary in Atlanta, Georgia, seeks via 28
U.S.C. § 2241 to challenge the validity of his
conviction and sentence in the United States District Court
for the Western District of North Carolina. [Doc. 4.]
Petitioner has not paid a filing fee or sought leave to
proceed without prepayment of a filing fee.
matter is before the Court for a preliminary review pursuant
to Rule 4 of the Rules Governing Section 2254 Cases, which
also applies to Section 2241 actions, as provided in Rule
1(b). Summary dismissal of a habeas petition under Rule 4 is
proper when the petition and the attached exhibits plainly
reveal that relief is not warranted. See McFarland v.
Scott, 512 U.S. 849, 856 (1994) (stating that Rule 4
dismissal is appropriate when petition “appears legally
insufficient on its face”).
is currently serving a sentence entered in the Western
District of North Carolina on June 22, 1999. [Doc. 1].
Petitioner appealed to the United States Court of Appeals for
the Fourth Circuit on July 13, 1999, but subsequently
dismissed his appeal. He filed for habeas relief pursuant to
28 U.S.C. § 2255 on February 5, 2001, in the Western
District of North Carolina raising claims of ineffective
assistance of counsel. His motion was dismissed on March 3,
2004. On April 19, 2016, Petitioner sought permission to file
a second or successive § 2255 motion from the Fourth
Circuit, arguing that he had been erroneously sentenced as a
career offender. His request was denied on May 3, 2016.
filed the present petition in this Court on February 12,
2018, raising the following grounds for relief: (1) his
sentence enhancement under 21 U.S.C. § 851 is null and
void in light of Descamps v. United States, 133
S.Ct. 2276 (2013) and Mathis v. United States, 136
S.Ct. 2243 (2016); and (2) his prior convictions do not
qualify him as a career offender in light of Mathis v.
United States, 136 S.Ct. 2243 (2016), United States
v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and Holt v.
United States, No. 16-1793 (7th Cir. Dec. 13, 2016).
conviction has become final, a federal prisoner usually may
challenge the legality of his detention only through a §
2255 motion. McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir.
2017), cert. denied, 138 S.Ct. 502 (Dec. 4, 2017);
see also Hill v. Warden, FCC Coleman-USP II, 364 F.
App'x 587, 588 (11th Cir. 2010) (“Typically,
collateral attacks on the validity of a federal conviction or
sentence must be brought under 28 U.S.C. §
2255.”); Wattleton v. Beeler, 186 F. App'x
852, 852-53 (11th Cir. 2006) (“Section 2255 is the
primary method to collaterally attack a federal
sentence.”). The “saving clause” of §
2255(e), however, allows a federal prisoner to bring a habeas
corpus petition under § 2241 if it “appears that
the remedy by motion is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).
Whether the saving clause applies is a threshold issue, and
this Court may not reach the merits of a § 2241 petition
unless the Court has jurisdiction to entertain it.
McDowell v. Warden, FCC Coleman-Medium, 694 F.
App'x 692, 693-94 (11th Cir. 2017), cert. denied
138 S.Ct. 343 (Oct. 10, 2017). “The burden of
demonstrating the inadequacy of or ineffectiveness of the
§ 2255 remedy rests squarely on the petitioner.”
Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1333 (11th Cir. 2013), abrogated in part on other
grounds by Johnson v. United States, 135 S.Ct. 2551
motion to vacate is inadequate or ineffective to test the
legality of a prisoner's detention only when it cannot
remedy a particular kind of claim.” McCarthan,
851 F.3d at 1099. In other words, “if the prisoner
could have brought the claim in a motion to vacate, then the
prisoner had a meaningful opportunity to test his
claim.” Id.; see also Smith v. FCC
Coleman-Medium Warden, 701 F. App'x 929, 931 (11th
Cir. 2017) (“'[T]o determine whether a prisoner
satisfies the saving clause, we ask only whether the motion
to vacate is an adequate procedure to test the prisoner's
claim.' . . . Stated another way, if the prisoner could
have brought the claim in a motion to vacate, then the
prisoner had a meaningful opportunity to test his
claim.”) (quoting McCarthan, 851 F.3d at
1086). Notably, § 2255 is not inadequate or ineffective
merely because the result of a § 2255 is unsuccessful or
because the movant is precluded from filing a second or
successive § 2255 motion. Wilson v. Warden, FCC
Coleman, 581 F. App'x 750, 752 (11th Cir. 2014);
Gilbert v. United States, 640 F.3d 1293, 1308 (11th
Cir. 2011); see also McCarthan, 851 F.3d at 1090-91
(“Neither McCarthan's failure to bring this claim
earlier nor his odds of success on the merits are relevant to
the saving clause inquiry” and “[t]he mere fact
that such [a § 2255 motion] is procedurally barred by
§ 2255's . . . restriction on second or successive
motions does not make it inadequate or ineffective.”).
claims that the § 2255 remedy is inadequate because of
the existence of a new interpretation of statutory law in
Descamps and Mathis, which was issued after
Petitioner had filed his direct appeal and § 2255
motion. As noted above, however, these facts to do not
support the application of the savings clause. While
Descamps and Mathis may not have been
decided when Petitioner filed his appeal and motion to
vacate, nothing stopped him from raising the grounds for
relief he raises now. A motion to vacate provides an adequate
and effective remedy for Petitioner to raise all of the
claims in his § 2241 petition. Accordingly, Petitioner
fails to satisfy the McCarthan standard for
application of the saving clause. Petitioner's §
2241 petition should be dismissed for lack of subject matter
jurisdiction. See Williams v. Warden, Fed. Bureau of
Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013).
these reasons, IT IS RECOMMENDED that the
§ 2241 petition  be DISMISSED for
lack of subject matter jurisdiction. The Court
GRANTS Petitioner in forma pauperis
status for the purpose of dismissal only. The Clerk is
DIRECTED to terminate the referral to the
IS SO ORDERED ...