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Allen v. Andrews

United States District Court, E.D. North Carolina, Western Division

February 13, 2018

Eugene Allen, Petitioner,
v.
Justin Andrews, Respondent.

          ORDER & MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         In June 2017, Petitioner Eugene Allen ("Allen"), a federal inmate proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 (D.E. 1). His petition is now before the court for a preliminary review under 28 U.S.C. § 2243. Also before the court are several motions (2, 3, 5) filed by Allen. For the following reasons, Allen's motions are denied and the undersigned recommends that the court dismiss this action.

         I. Background

         In September 2003, in the United States District Court for the District of Maine, Allen pleaded guilty to interstate transportation of stolen property and to being a felon in possession of a firearm. Pet. at 1, D.E. 1; see also Allen v. Andrews, Case No. 5:16-HC-2165-F (E.D. N.C. Nov. 10, 2016), D.E. 9. The court sentenced him to concurrent terms of 120 months and 210 months imprisonment. Pet. at 1, D.E. 1. Allen appealed, and the United States Court of Appeals for the First Circuit affirmed his sentence. Id. at 2. In March, 2007, Allen unsuccessfully moved to vacate, correct, or modify his sentence under 28 U.S.C. § 2255 in the District of Maine. Id. at 4; see also Allen, Case No. 5:16-HC-2165-F, D.E. 9. Allen also filed a second unsuccessful motion to vacate in September 2015. See Allen, Case No. 5:16-HC-2165-F, D.E. 9.

         In July 2016, Allen filed a § 2241 petition in this court, arguing that his conviction was invalid after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015).[1] This court treated the petition as another motion to vacate under § 2255 and transferred the case to the District of Maine. Id. at 5. That court denied the transferred petition as successive in March 2017. Allen v. United States, Case No. 1:03-CR-58-JAW (D. Me. Mar. 1, 2017), D.E. 113. Allen then sought leave from the First Circuit to file a successive § 2255 petition. The request was denied, with the First Circuit noting "the request is denied because, as we previously concluded . . . Johnson is inapplicable to Allen's case." Id., D.E. 114. Despite the First Circuit's decision, Allen responded by filing yet another successive § 2255 motion in the District of Maine in April 2017. Id., D.E. 115. He also filed a "motion requesting release/bail pending the outcome of the habeas corpus" under 18 U.S.C. §§ 3143, 3145(c). Id., D.E. 116. A magistrate judge denied his request for release or bail in May 2017 and his § 2255 petition was dismissed in August 2017. Id., D.E. 118, 119.

         Allen filed this petition in June 2017, again alleging that his sentence is invalid after Johnson. Indeed, this petition appears to be identical to the petition he previously filed in this court.

         II. Initial review under 28 U.S.C. § 2243

         Although Allen 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. An offender must challenge the legality of his conviction and sentence 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(e); see In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). In the Fourth Circuit, Section 2255 is ineffective or inadequate 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 constitutional law.

         In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Section 2255 is not rendered inadequate or ineffective just because a petitioner is procedurally barred from filing a § 2255 motion. Vial, 115 F.3datll94.

         Here, Allen has not shown that § 2255 is an "inadequate or ineffective remedy." He does not allege that, after his direct appeal and first § 2255 petition, the substantive law changed so that the conduct of which he was convicted is deemed not to be criminal. He also does not allege that the new rule in Johnson is not one of constitutional law. Because Allen has not satisfied the criteria set out in Jones to establish that § 2255 is an "inadequate or ineffective remedy, " he must proceed with his claim under § 2255.

         The court cannot convert this § 2241 petition into a § 2255 petition because Allen has previously filed such a habeas action. An offender may not bring a second or successive § 2255 petition unless a Circuit Court of Appeals certifies that the new petition contains either newly discovered evidence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255; see United States v. Winestock, 340 F.3d 200, 204 (4th Cir. 2003). Allen has not shown either of these. Indeed, the First Circuit has denied Allen leave to file a successive petition, specifically noting that Johnson does not apply to his case. Allen, Case No. 1:03-CR-58-JAW (D. Me. Apr. 4, 2017), D.E. 114.

         Nor is § 2255 rendered inadequate or ineffective just because an individual cannot obtain relief under that provision. In re Jones, 226 F.3d at 333. Allen has thus failed to satisfy the § 2255 gatekeeping provision. See Brown v. Andrews, No. 5:25-HC-2200-F (E.D. N.C. Dec. 9, 2015) (dismissing without prejudice Johnson claim raised in a successive § 2241 petition); Brown v. Meeks, No. 4:15-CV-3506-RMG, 2015 WL 7313865, at *2 (D.S.C. Nov. 20, 2015) (same); United States v. Smith, 5:03-CR-195-FL (E.D. N.C. Aug. 26, 2015), D.E. 101 (same).

         III. Allen's ...


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