United States District Court, E.D. North Carolina, Western Division
ORDER & MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
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.
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,
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). 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.
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.
Initial review under 28 U.S.C. § 2243
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.
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.
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.
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.
§ 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.