United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
matter is before the Court on Petitioner's Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Doc. No.
pled guilty in the underlying criminal case to a single count
of conspiracy to commit money laundering. (3:11-cr-156, Doc.
Nos. 27, 29). The Court sentenced him at the bottom of the
advisory guidelines range to 135 months' imprisonment,
consecutive to any previous state or federal sentence.
(3:11-cr-156, Doc. Nos. 39, 40). The Fourth Circuit Court of
Appeals dismissed Petitioner's appeal pursuant to his
plea agreement's appellate waiver. (3:11-cr-156, Doc. No.
55). The United States Supreme Court denied certiorari on
October 3, 2016. Sandoval v. United States, 137
S.Ct. 228 (2016).
filed the instant habeas petition on April 9, 2018. He claims
to be challenging a “COMMERCIAL CONVICTION” in
this petition “Procedural Errors and Constitutional
Violation which Resulted in the CONVICTION of One who is
Actually Innocent, ‘Actual Innocence.” (Doc. No.
1 at 2). He claims that (renumbered): (1) the Court lacked
subject-matter and personal jurisdiction over his criminal
case; and (2) the charging documents were defective and void.
He claims that he did not raise these claims sooner due to
the ineffective assistance of counsel. He states that
“§ 2255 is NOT the proper form” to bring
this challenge because “The Affiant, Mr. Jorge Armando
Rios Sandoval, whom is being HELD, Incarcerated against His
Will, under Color of Law.” (Doc. No. 1 at 5).
an inmate challenges the execution of his sentence, a writ of
habeas corpus under Section 2241 is the appropriate remedy.
Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). On
the other hand, an action collaterally attacking the validity
of the conviction or imposition of the sentence should be
filed as a motion to vacate under 28 U.S.C. § 2255.
petition attacking custody resulting from a federally-imposed
sentence may be filed under § 2241 instead of §
2255 where the petitioner establishes the remedy provided
under § 2255 is “inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. §
2255(e). Section 2255 is inadequate and ineffective to test
the legality of a conviction when: (1) at the time of
conviction, settled law of the Fourth 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); see also United
States v. Wheeler, 886 F.3d 415, 419 (4th
Cir. 2018) (extending the savings clause to fundament
sentencing errors). Section 2255 is not inadequate or
ineffective merely because an individual is unable to obtain
relief under that provision. See Jones, 226 F.3d at
333. The petitioner bears the burden of presenting evidence
that affirmatively shows the § 2255 remedy is inadequate
or ineffective. See Hood v. United States, 13
Fed.Appx. 72 (4th Cir. 2001).
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without a
response from the Government and without an evidentiary
hearing based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529
presently attempts to attack the validity of his conviction
and sentence and therefore is in the nature of a § 2255
motion to vacate rather than a § 2241 habeas petition.
However, he has specifically stated that he does not seek
relief under § 2255 so the petition will not be
recharacterized as such. Petitioner's only recourse,
then, is to demonstrate that he can proceed pursuant to
§ 2241 under the savings clause. He has failed to do so.
He does not explain why § 2255 is an inadequate or
ineffective means of challenging the validity of his
detention. The fact that such a petition would now be
time-barred does not demonstrate that § 2255 is
inadequate or ineffective. See generally Jones, 226
F.3d at 333.
Petitioner has failed to invoke the savings clause, this
Court cannot rule on the merits of his claims and the §
2241 Habeas Petition will be dismissed.