United States District Court, E.D. Arkansas, Eastern Division
PROPOSED FINDINGS AND RECOMMENDATION
following recommended disposition has been sent to United
States District Judge James M. Moody, Jr. You may file
written objections to all or part of this Recommendation. If
you do so, those objections must: (1) specifically explain
the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Lee (“Lee”) is an inmate in federal custody after
pleading guilty in 2005 to using a computer/telephone system
for the purpose of persuading a minor to engage in sexual
acts. See 18 U.S.C. § 2422(b). In June 2006 Lee was
sentenced by the United States District Court, Western
District of Tennessee, to 188 months' imprisonment, with
supervised release for life. This sentence was based in part
upon the finding in the Pre-Sentence Investigation Report
that Lee had four 2004 convictions in Tennessee state court
for attempted aggravated sexual battery. Lee appealed the
conviction to the United States Court of Appeals, Sixth
Circuit, challenging one of the conditions of release. This
appeal was dismissed without prejudice, as the Court held
Lee's challenge was not ripe for determination. Docket
entry no. 13-2.
2013, Lee filed a 28 U.S.C. § 2255 motion to vacate his
sentence with the trial court. He alleged his counsel was
ineffective, he was actually innocent, and the prosecutor
misled the grand jury. The trial court denied relief in an
Order dated March 4, 2015, finding Lee failed to comply with
the applicable statute of limitation, and failed to
demonstrate the limitation period should be equitably tolled.
Docket entry no. 13-5. The trial court explicitly found
Lee's claim of actual innocence was
“illusory.” Id. The trial court denied
Lee a certificate of appealability and certified that any
appeal would not be taken in good faith. In 2016, Lee asked
the trial court for leave to appeal its decision. Citing the
March 2015 Order, the trial court denied Lee's request.
Docket entry no. 13-6. The Court of Appeals also denied
Lee's request for a certificate of appealability. Docket
entry no. 13-8.
later sought permission from the United States Court of
Appeals, Sixth Circuit, to file a second or successive motion
to vacate his sentence pursuant to 28 U.S.C. § 2255.
This request was denied, based upon a finding that Lee did
not show that a new constitutional law, deemed retroactively
applicable on collateral review by the Supreme Court, applied
to his case. 28 U.S.C. § 2255(h). Docket entry no.
13-7. The Court noted Lee was not sentenced under the Armed
Career Criminal Act (“ACCA”) or under USSG
§ 4B1.2(a), the career offender guideline. Id.
who is in custody at the Federal Correctional Complex in
Forrest City, Arkansas, filed this petition for relief on
October 31, 2016. The petition seeks relief pursuant to 28
U.S.C. § 2241, alleging that “new, intervening
changes” in the law render his sentence invalid. Docket
entry no. 2, page 2. He argues that he “is therefore
factually innocent of his increased sentence under new law
and his illegal sentence results in a fundamental miscarriage
of justice.” Id.
response, respondent C.V. Rivera (“Rivera”)
contends the petition should be dismissed because Lee should
have pursued his relief in a § 2255 petition rather than
a § 2241 petition. Typically, § 2241 petitions
address either the execution of a sentence or the conditions
of confinement, not the imposition of a sentence. Cain v.
Petrovsky, 798 F.2d 1194, 1198 n. 3 (8th Cir.
1986). See also United States v. Lurie, 207 F.3d
1075 (8th Cir. 2000). According to Lurie,
§ 2241 relief may be pursued only if Lee demonstrates
§ 2255 relief is inadequate or ineffective.
Lurie Court addressed the issue of the inadequacy or
ineffectiveness of section 2255 relief:
While courts have not thoroughly defined what is meant by
“inadequate or ineffective, ” recent cases from
our sister circuits make clear that more is required than
demonstrating that there is a procedural barrier to bringing
a § 2255 motion. . . (citation omitted). Specifically,
the § 2255 motion is not inadequate or ineffective
merely because § 2255 relief has already been denied . .
. (citations omitted), or because petitioner has been denied
permission to file a second or successive § 2255 motion,
. . . (citations omitted), or because a second or successive
§ 2255 has been dismissed, . . . (citation omitted), or
because petitioner has allowed the one year statute of
limitations and/or grace period to expire.
Court further noted that Lee bears the burden of showing
§ 2255 relief inadequate or ineffective. See also
Charles v. Chandler, 180 F.3d 753 (6th Cir.
1999), and DeSimone v. Lacy, 805 F.2d 321
(8th Cir. 1986). The claim Lee raises, an invalid
sentence, is a classic challenge to the imposition of a
sentence, and is not related to the execution of the sentence
or to the conditions of confinement. As such, this claim is
typically cognizable in a § 2255 petition filed with the
trial court, not in a § 2241 petition filed with this
Court, absent Lee's demonstration that § 2255 is
inadequate or ineffective.
Lee previously sought the permission of the Sixth Circuit
Court of Appeals to file a second or successive § 2255
petition, he cited Johnson v. United States, 135
S.Ct. 2551 (2015) as a new rule of constitutional law. The
Sixth Circuit Court of Appeals denied the request, finding
“Lee was not sentenced in accordance with any provision
that could arguably be affected by Johnson.”
Docket entry no. 13-7, page 3. Lee did not argue other cases
which he now relies upon, i.e., Descamps v. United
States, 133 S.Ct. 2276 (2013), Mathis v. United
States, 136 S.Ct. 2243, and United States v.
Dahl, 833 F.3d 345 (3rd Cir. 2016), in his
citing Johnson, Descamps, Mathis,
and Dahl, now asks this Court to find § 2255
inadequate or ineffective and proceed to the merits of his
§ 2241 petition. Lee's circumstances are similar to
the petitioners in U.S. ex rel. Perez v. Warden, FMC
Rochester, 286 F.3d 1059 (8th Cir. 2002),
where petitioners filed a § 2241 petition rather than a
request for permission to file a second or successive §
2255 petition. They sought a decrease in their sentences for
drug convictions based upon Apprendi v. New Jersey,
530 U.S. 466 (2000), and argued that § 2255 was
inadequate or ineffective, thereby opening the door to
raising their claims in a § 2241 petition. The Eighth
Circuit Court of Appeals addressed this claim:
We believe this argument is flawed because it attributes
blame to the wrong source. Perez and Ruotolo contend §
2255 is inadequate or ineffective because it is the
impediment to the relief they seek. But this is not so. Their
true impediment is Apprendi itself, not the remedy
by § 2255 motion. To be more precise, appellants are
hamstrung because the Supreme Court has not yet ruled (and
indeed may never rule) that Apprendi applies
retroactively to past criminal convictions. Neither Perez nor
Ruotolo may raise an Apprendi claim in a second
§ 2255 motion unless and until Apprendi applies