United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on respondent's motion to
dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) (DE 7). The issues
raised have been fully briefed and are ripe for adjudication.
For the following reasons, the court grants respondent's
February 26, 2003, petitioner pleaded guilty in the United
States District Court for the District of Maryland to
conspiracy to distribute and possess with intent to
distribute 50 grams or more of cocaine base (crack), five or
more kilograms of cocaine, and one kilogram or more of
heroin, in violation of 21 U.S.C. § 846. United
States v. Byers, Case No. 1:01-cr-304-JFM-2 (D. Md.
February 26, 2003). On April 18, 2003, petitioner was
sentenced to 420 months imprisonment. Id. (April 18,
2003). Petitioner's appeal to the Fourth Circuit was
dismissed on September 29, 2003. Id. (September 29,
203). On November 24, 2004, petitioner filed a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, which was denied on May 23, 2005.
Id. (May 23, 2005). Petitioner filed a motion to
reduce sentence pursuant to 18 U.S.C. § 3582 on May 5,
2008, which was denied on September 26, 2008. Id.
(September 26, 2008).
15, 2016, petitioner filed the instant counseled petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241, in
which he asserts he was deprived of effective assistance of
counsel during the plea bargain/plea process. (Pet'r. Ex
(DE 1-1) at 5-9). Specifically, he contends that he
“did not entirely understand how the plea agreement had
held him responsible for quantities of drugs and acts of
violence with which he did not agree.” Id. at
7. Therefore, petitioner argues, improper drug quantities and
relevant conduct were considered in determining
petitioner's sentence. Id. Petitioner's
claims survived initial review on July 26, 2016 (DE 2). On
September 14, 2016, respondent filed a motion to dismiss
pursuant to Rule 12(b)(1), arguing that the court lacks
subject matter jurisdiction. The motion was fully briefed.
Standard of Review
12(b)(1) motion challenges the court's subject matter
jurisdiction, and the petitioner bears the burden of showing
that federal jurisdiction is appropriate when challenged by
the respondent. McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either
1) assert the complaint fails to state facts upon which
subject matter jurisdiction may be based, or 2) attack the
existence of subject matter jurisdiction in fact, apart from
the complaint. Adams, 697 F.2d at 1219. Under the
former assertion, the moving party contends that the
complaint “simply fails to allege facts upon which
subject matter jurisdiction can be based.” Id.
In that case, “the [petitioner], in effect, is afforded
the same procedural motion as he would receive under a Rule
12(b)(6) consideration.” Id. “[A]ll
facts alleged in the complaint are assumed true, and the
motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns
v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
When the defendant challenges the factual predicate of
subject matter jurisdiction, a court “may then go
beyond the allegations of the complaint and in an evidentiary
hearing determine if there are facts to support the
jurisdictional allegations” without converting the
matter to summary judgment. Adams, 697 F.2d at 1219;
Kerns, 585 F.3d at 192.
petitioner filed his claim under 28 U.S.C. § 2241, he is
in fact attacking the legality of, rather than the execution
of, his conviction and sentence. The legality of one's
sentence must be challenged under 28 U.S.C. § 2255
unless “the remedy by motion [under § 2255] is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255; see In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). A
procedural impediment to § 2255 relief, such as the
statute of limitations or the rule against successive
petitions, does not render § 2255 review
“inadequate” or “ineffective.”
Id. at 1194, n. 5.
Fourth Circuit has examined the prerequisites for finding
that § 2255 is an inadequate or ineffective remedy.
See In re Jones, 226 F.3d 328, 333-34 (4th Cir.
2000). In Jones, the court held that:
§ 2255 is inadequate and ineffective to test the
legality of a conviction when: (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 gatekeeping
provisions of § 2255 because the new rule is not one of
does not demonstrate that § 2255 is an “inadequate
or ineffective remedy.” He does not allege that,
subsequent to petitioner's direct appeal and first §
2255 petition, the substantive law changed such that the
conduct of which he was convicted is deemed not to be
criminal. The savings clause does not apply to a prisoner who
argues only his innocence of a sentencing factor.
See 28 U.S.C. § 2255(h)(1); Farrow v.
Revell, 541 Fed.Appx. 327, 328 (4th Cir. 2013) (per
curiam) (§ 2255's savings clause “only
preserves claims in which petitioner claims actual innocence
of convictions and not just innocence ...