United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST FLORENCE, UNITED STATES MAGISTRATE JUDGE.
Vilanova-Delgado "Petitioner, " proceeding pro se,
brings this action pursuant to 28 U.S.C. § 2241 for
habeas relief. Petitioner is an inmate at
FCI-Williamsburg, part of the Federal Bureau of Prisons
system. Petitioner paid the filing fee. Receipt No.
Factual and Procedural Background
was convicted of two counts of exploitation of children in
the United States District Court for the District of Puerto
Rico ("the sentencing court"). United States v.
Vilanova-Delgado, No. 3:ll-CR-0222-JAF (D.P.R.). On June
25, 2012, he was sentenced to a term of 210 months. On
December 14, 2016, Petitioner filed an initial motion to
vacate sentence under 28 U.S.C. § 2255 in the sentencing
court. The motion asserted that he was convicted under an
invalid statute that was not passed by Congress and that he
had ineffective assistance of counsel. The § 2255 motion
was summarily denied on December 14, 2016.
Vilanova-Delgado v. United States, No.
3:16-cv-3144-FAB (D.P.R.). A requested certificate of
appealability was denied on March 22, 2017. Petitioner's
appeal from the denial of his motion to vacate was terminated
by the First Circuit Court of Appeals on June 16, 2017.
Vilanova-Delgado v. United States, No. 17- 1274 (1st
Cir.). Petitioner filed his Petition in this case on August
31, 2017. ECF No. 1-1. See Houston v. Lack, 487 U.S.
266, 271 (1988) (pro se prisoner's pleading is deemed
"filed" at moment of delivery to prison authorities
for forwarding to district court).
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
this case. The review was conducted pursuant to the
procedural provisions of the Rules Governing Habeas Corpus
Cases Under Section 2254 and the Anti-Terrorism and Effective
Death Penalty Act of 1996, and in light of the following
precedents: Denton v. Hernandez, 504 U.S. 25 (1992);
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989);
Haines v. Kerner, 404 U.S. 519 (1972); Nasim v.
Warden, Maryland House of Correction, 64 F.3d 951 (4th
Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th
Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th
court is required to construe pro se petitions liberally.
Such pro se petitions are held to a less stringent standard
than those drafted by attorneys, see Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a
federal district court is charged with liberally construing a
petition filed by a pro se litigant to allow the development
of a potentially meritorious case. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405
U.S. 319 (1972). Even under this less stringent standard,
however, the petition submitted in this case is subject to
summary dismissal. The requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts that set forth a claim currently
cognizable in a federal district court. See Wetter v. Dep
't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Petition under review, Petitioner contends that Title 18 of
the United States Code, including the statute providing
jurisdiction to federal courts, 18 U.S.C. § 3231, and
the statute under which he was convicted, 18 U.S.C. §
2251, are void "and essentially FRAUD on the Court,
" ECF No. 1 at 1, because the Public Law from which they
derive, Pub. L. 80-772, was not validly passed by Congress in
1948. It appears from a review of the Petition in this case
and his initial § 2255 motion that Petitioner is making
essentially the same arguments and claims about the
underlying validity of his conviction in this court that he
unsuccessfully made to the sentencing court in connection
with his initial § 2255 motion. His allegations of
conviction under an allegedly invalid statute and in absence
of district court jurisdiction all go to the underlying
validity of his conviction rather than to the manner of
execution of the sentence, the most commonly accepted subject
matter for petitions filed pursuant to § 2241. See
Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999)
(collecting cases from other circuits). In this Circuit it is
settled that "[a]s a threshold matter . . . defendants
convicted in federal court are obliged to seek habeas relief
from their convictions and sentences through § 2255.
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)
(citing In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997) (en banc)). The Fourth Circuit Court of Appeals has
held that challenges to the underlying validity of a federal
criminal conviction are not properly considered under §
2241 unless Petitioner can come within the § 2255
savings clause by showing that this is an exceptional case
where § 2255 is neither an adequate nor effective remedy
for those issues. See In re Jones, 226 F.3d 328, 333
(4th Cir. 2000); In re Vial, 115 F.3d 1192, 1194
(4th Cir. 1977); Farrow v. Revell, No. 13-6804, 2013
WL 5546155, at *1 (4th Cir. Oct. 09, 2013). In other words,
Petitioner's § 2241 action is barred unless he can
demonstrate that the relief available to him under §
2255 is inadequate or ineffective. The "savings
An application for a writ of habeas corpus in behalf of a
prisoner 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.
28 U.S.C. § 2255(e). With regard to the application of
the § 2255 savings clause to § 2241 petitions, it
is settled in this circuit that the possibility that a second
§ 2255 motion filed by Petitioner in the sentencing
court might be found untimely or successive does not render
the § 2255 remedy inadequate or ineffective. See In
Re Vial, 115F.3datll94n.5; see also Jiminian v.
Nash, 245 F.3d 144, 147-48 (2d Cir. 2001) (collecting
cases). To trigger the savings clause of § 2255(e) and
proceed under § 2241, Petitioner must show that
something more and different should be considered by the
court than that authorized by § 2255, such as a
retroactive change in the law that was applied to his
conviction or sentence by the sentencing court as
contemplated in In re Jones, 226 F.3d 328 (4th Cir.
2000). The Jones court held that a petitioner must
show that "(1) at the time of the 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 gate-keeping provisions of
§ 2255 because the new rule is not one of constitutional
law." Jones, 226 F.3d at 333-34. Here,
Petitioner makes no allegations that the § 2255 is
inadequate or ineffective to test the constitutionality of
his confinement. The § 2241 petition form that he filled
out at the court's direction has a specific question on
it that provides an opportunity for the petitioner to express
reasons why the § 2255 remedy is inadequate or
ineffective, but Petitioner did not write anything in the
space provided after that question. ECF No. 1-2 at 4-5. Under
these circumstances, this matter cannot proceed under §
2241 to overrule the sentencing court, which has already
considered and rejected Petitioner's claims relating to
the underlying validity of his convictions and sentence. A
habeas corpus petition under § 2241 may not be used for
this purpose because it is not an additional or alternative
remedy to § 2255. Capaldi v. Pontesso, 135 F.3d
1122, 1123 (6th Cir. 2003); Hernandez v. Lamanna, 16
Fed.Appx.. 317, 320 (6th Cir. 2001).
this court had jurisdiction to consider the merits of
Petitioner's contentions-which it does not because, as
stated below, § 2241 is not the proper vehicle to
challenge the underlying validity of a conviction-those
contentions would fail. See Cardenas-Celestino v. United
States, 552 F.Supp.2d 962, 966 (W.D. Mo. 2008)
(Petitioner's challenge to Title 18 of the United States
Code is "part of a new rash of frivolous claims raised
by prisoners across the country."). Courts that have
considered such arguments have found them frivolous. See,
e.g. Castillo v. United States, No. 5:ll-CV-76-DCB-JMR,
2011 WL 2110321, at *3 (S.D.Miss. May 25, 2011) (§2241
petition; collecting cases); see also United States v.
Campbell, 221 Fed.Appx. 459, 461 (7th Cir. 2007)
(rejecting argument that § 3231 is void because the
House and Senate did not vote on it during the same session
of Congress); United States v. Collins, 510 F.3d
697, 698 (7th Cir. 2007) (describing attack on
constitutionality of the enaction of Title 18 as
"unbelievably frivolous"); United States v.
Potts, 251 Fed.Appx. 109, 111 (3d Cir. 2007) (denying
motion to void a criminal judgment and holding that the
defendant's contention that the 1948 amendment to §
3231 was not passed by both houses of Congress was
"frivolous"); Rhodes v. United States, No.
4:06-CR-00218, 2011 WL 2693571, at *1 (E.D. Ark. Jul. 12,
2011) (rejecting claim that a quorum was not present when the
House voted on Public Law 80-772); Turner v. United
States, No. 11-0327-WS-C, 2011 WL 5595939, at *5-6 (S.D.
Ala. Sep. 8, 2011) (denying challenge to the jurisdiction of
the court on the ground that the House vote on Public Law
80-772 was taken without a quorum); United States v.
Felipe, No. 07-CV-061, 2007 WL 2207804, at *2 (E.D. Pa.
Jul. 30, 2007) (rejecting argument that there was a sine
die recess in Congress between the House vote on Public
Law 80-772 and its adoption by the Senate in violation of the
Constitution). In light of the substantial law cited above,
the Petition under review is frivolous and subject to summary
it is recommended that the Petition for a Writ of Habeas
Corpus in this case ...