United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Hernandez-Vilar (“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 one count of possession of an unauthorized
access device on a guilty plea in the United States District
Court for the Middle District of Georgia (“the
sentencing court”). United States v.
Hernandez-Vilar, No. 7:14-cr-0021-HL-TOL-4 (M.D. Ga.).
On March 3, 2015, he was sentenced to a prison term of 80
months. On February 24, 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 provided
ineffective assistance of counsel when a direct appeal was
not filed. The § 2255 motion was denied and
Petitioner's appeal from that denial to the Eleventh
Circuit Court of Appeals was unsuccessful. Petitioner then
filed an unsuccessful petition under 28 U.S.C. § 2254,
raising the subject-matter jurisdiction claim that he raises
in this case. Hernandez-Vilar v. Hancock, No.
1:17-cv-0047-WLS-TOL (M.D. Ga.).
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, Md. House of Corr., 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 Cir. 1979).
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 which set forth a claim
currently cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th
Petition under review, Petitioner contends that his
conviction should be vacated because it was entered in
absence of subject-matter jurisdiction and because he was not
properly taken from Georgia state custody by federal
authorities through a detainer or bench warrant. ECF No. 1 at
6. Petitioner's allegations of conviction in absence of
jurisdiction and without use of the proper procedures for
removing him from state custody 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).
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, 541 F. App'x 327, 328-29 (4th Cir. 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 clause” states:
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, 115 F.3d at 1194 n.5; see also Jiminian v.
Nash, 245 F.3d 144, 147-48 (2d Cir. 2001) (collecting
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. 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 has a specific question on
it that provides an opportunity for a petitioner to express
reasons why the § 2255 remedy is inadequate or
ineffective. Here, though, Petitioner wrote only
“N/A” in the space provided after that question.
ECF No. 1 at 5. Under these circumstances, this court cannot
proceed under § 2241 to overrule the sentencing court,
which has already ...