United States District Court, E.D. Arkansas, Eastern Division
RAYMOND L. ROGERS PETITIONER
GENE BEASLEY, Warden, FCI - Forrest City RESPONDENT
following Recommended Disposition
(“Recommendation”) has been sent to United States
District D. P. Marshall, 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 the entry of
this Recommendation. The failure to timely file objections
may result in waiver of the right to appeal questions of
before the Court is a 28 U.S.C. § 2241 Petition for a
Writ of Habeas Corpus filed by Petitioner, Raymond Rogers
(“Rogers”), who is currently incarcerated at the
Forrest City, Arkansas, Federal Correctional Institution.
Doc. 1. In the petition, Rogers challenges a jury
conviction and sentence imposed by the United States District
Court for the District of Kansas (Wichita Division).
United States v. Rogers, 6:13-1448-JTM
(“Rogers I”). The relevant facts
supporting Roger's collateral attack on his federal
sentence are set forth below.
December 1, 2011, a jury in Rogers I found Rogers
guilty of bank robbery, possession of a firearm in
furtherance of a crime of violence, and felon in possession
of a firearm. On April 16, 2012, Rogers was sentenced to 234
appealed. On April 5, 2013, the Tenth Circuit Court of
Appeals affirmed. United States v. Raymond Rogers,
No. 12-3125 (10th Cir. April 5, 2013) (unpublished). The
Tenth Circuit rejected Rogers' arguments that the
district court improperly: (1) denied his motion for judgment
of acquittal; (2) enhanced his base offense level; and (3)
denied his right to allocution.
December 2, 2013, Rogers filed a Motion to Vacate or Set
Aside the Sentence pursuant to 28 U.S.C. § 2255.
Rogers I, Doc. No. 146. Rogers asserted
multiple claims of ineffective assistance of counsel and
trial court error. On December 9, 2014, all of Roger's
claims were found to be without merit, and his § 2255
petition was dismissed. On December 23, 2014, Rogers was
denied a certificate of appealability.
I, Doc. Nos. 162 and 164.
November 13, 2017, Rogers filed the § 2241 habeas action
now before this Court. In his § 2241 petition, he
argues: (1) the Rogers I district court was divested
of jurisdiction when it dismissed the first superseding
indictment on the Government's motion and permitted the
Government to proceed to trial on the original
indictment; (2) the Rogers I district court
“impermissibly amended” the indictment by its
jury instructions; and (3) his counsel was ineffective at
trial and on appeal.
conducting an initial review of Rogers' habeas corpus
petition, this Court may summarily deny relief “if it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.” Rule 4
of the Rules Governing § 2254 Cases in the United States
District Courts (applicable to § 2241 petitions under
Rule 1(b)); 28 U.S.C. § 2243. As part of that initial
review, the Court is also obligated to decide whether it has
subject matter jurisdiction. See Northport Health Servs.
v. Rutherford, 605 F.3d 483, 490 (8th Cir.
2010) (“federal courts are obligated to consider lack
of subject matter jurisdiction sua sponte”).
over a federal prisoner's collateral attack on his
conviction or sentence is governed by the well-recognized
distinction between claims that attack the validity
of a federal conviction or sentence, and claims that
challenge the execution of a federal sentence. As a
general rule, collateral challenges to a federal conviction
or sentence must be raised in a motion to vacate
filed in the sentencing court under 28 U.S.C. §
2255, rather than by a habeas petition filed in the court
of incarceration under 28 U.S.C. § 2241.
Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir.
2010); Abdullah v. Hedrick, 392 F.3d 957, 959 (8th
Cir. 2004). Because a § 2255 motion attacks the validity
of the conviction or sentence, it is “a further step in
the movant's criminal case, ” and subject matter
jurisdiction lies with the court which convicted and
sentenced him. DeSimone v. Lacy, 805 F.2d 321, 323
(8th Cir. 1986); Thompson v. Smith, 719 F.2d 938,
940 (8th Cir. 1983).
limited exception to this rule is found in the “savings
clause” of § 2255(e), which permits a federal
court in the district of incarceration to entertain a §
2241 habeas petition challenging the validity of a conviction
or sentence only if the remedy under § 2255 is
“inadequate or ineffective to test the legality of his
detention.” Hill v. Morrison, 349 F.3d 1089,
1091 (8th Cir. 2003). Stated differently, the court of
incarceration has subject matter jurisdiction over a
collateral attack on a conviction or sentence rendered by
another district court only if the remedies in the
sentencing district are inadequate or ineffective. A
petitioner bears the burden of demonstrating that the §
2255 remedy is inadequate or ineffective.
Lopez-Lopez, 590 F.3d at 907; Hill, 349
F.3d at 1091.
contends that his § 2255 remedy was “inadequate or
ineffective” because his sentence is not merely
erroneous, but was absolutely null and void from inception.
Thus, Rogers argues, the Rogers I trial court lacked
jurisdiction “from the indictment stage to
sentencing” rendering the criminal proceeding a nullity
that renders habeas relief “the only appropriate
remedy.” Doc. 1 at 7. This argument fails.
Rogers' proposed claims challenge the validity of his
federal convictions. This is obvious both from the nature of
his claims and his requested relief - “release from his
current unlawful imprisonment.” Doc. 1 at 2.
All of the claims he now asserts, including a challenge to
the Rogers I trial court's jurisdiction, could
and should have been asserted on direct appeal or in the
sentencing court under § 2255. The Eighth Circuit has
consistently held that the “savings clause” may
not be invoked to raise an issue under § 2241 which
could have been, or actually was, raised in a direct appeal