United States District Court, E.D. Arkansas, Eastern Division
JOHN M. HARDIMON PETITIONER
GENE BEASLEY, Warden, Federal Correctional Institution-Low, Forrest City, Arkansas RESPONDENT
Procedure for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge D .P. Marshall, Jr. Mr. Hardimon may file
written objections with the Clerk of Court within fourteen
(14) days of filing of the Recommendation. Objections must be
specific and must include the factual or legal basis for the
objection. An objection to a factual finding must identify
the finding of fact believed to be wrong and describe the
evidence that supports that belief.
objecting, any right to appeal questions of fact may be
jeopardized. And, if no objections are filed, Judge Marshall
may adopt this Recommendation without independently reviewing
John M. Hardimon pleaded guilty to federal charges of
defrauding health insurers and money laundering. He was
sentenced to 70 months in prison and ordered to pay
restitution of almost $2 million. United States v.
Hardimon, 700 F.3d 940, 941 (7th Cir. 2012) cert denied
569 U.S. 983 (2013). As part of his guilty plea, Mr. Hardimon
waived his right to appeal. Id. Shortly after his
plea, however, Mr. Hardimon moved to withdraw the plea on the
ground that he had been taking psychotropic drugs that had
clouded his mind and made his plea involuntary. Id.
The judge denied the motion. Id.
Hardimon appealed, claiming the court erred in denying his
motion and that the restitution order was illegal. The United
States Court of Appeals for the Seventh Circuit rejected Mr.
Hardimon's arguments, concluded that his guilty plea was
valid, and affirmed the judgment. Id.
Hardimon then filed a motion to vacate, set aside, or correct
his sentence, under 28 U.S.C. § 2255, claiming
ineffective assistance of counsel. Additionally, he claimed
that the “government did not have any right to bring a
criminal case for health care billing fraud and money
laundering” against him in the first place; that the
court violated his Sixth Amendment right to a jury trial by
determining the loss for an applicable statutory sentencing
range; and that the Government withheld computer notes that
led to an erroneous restitution calculation at sentencing.
Hardimon v. USA, No. 3:13-cv-775-MJR, docket entry
#25 at 3, 19-20 (S.D. Ill. Nov. 19, 2013). The court denied
the motion. Id. It found that Mr. Hardimon had not
met his burden of establishing ineffective assistance of
counsel, had waived his right to collaterally challenge his
sentence, and had not raised any of these arguments on direct
appeal. Id. at 19-20.
Hardimon filed a notice of appeal from the denial of his
motion under 28 U.S.C. §2255 and an application for a
certificate of appealability with the United States Court of
Appeals for the Seventh Circuit. The Court reviewed the
district court's order and the record, but found no
substantial showing of the denial of a constitutional right
and denied a certificate of appealability. Hardimon v.
USA, No. 13-3763 (7th Cir. June 13, 2014).
the Seventh Circuit's denial of a certificate of
appealability, Mr. Hardimon filed several post-judgment
motions with the district court, including a motion to vacate
a void judgment under Federal Rule of Civil Procedure
60(b)(4) because of alleged fraud on the court. Hardimon
v. USA, No. 14-3722 (7th Cir. June 9, 2015). The court
denied the motions for lack of subject-matter jurisdiction.
Id. Mr. Hardimon appealed and requested a
certificate of appealability, but the United States Court of
Appeals for the Seventh Circuit again denied a certificate of
Hardimon has now filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241, challenging his
“confinement for the last 70 months.” (Docket
entry #2 at 2) In the petition, Mr. Hardimon complains that
his plea was unknowing and involuntary; that his appeal
waiver was unknowing and involuntary; and that the
restitution portion of his sentence is illegal. (#2 at
(Docket entry #1 at 4) For relief, Mr. Hardimon asks this
Court to set aside his plea agreement and sentence. (#2 at 3)
Court lacks jurisdiction over Mr. Hardimon's petition.
Generally, a federal inmate may challenge his conviction or
sentence only with the sentencing court through a motion to
vacate, set aside or correct his sentence, under 28 U.S.C.
§ 2255. Lopez-Lopez v. Sanders, 590 F.3d 905,
907 (8th Cir. 2010) (citing Abdullah v. Hedrick, 392
F.3d 957, 959 (8th Cir. 2004), cert. denied, 545 U.S. 1147
(2005)). A habeas corpus petition under 28 U.S.C. §
2241, on the other hand, attacks the execution of a sentence,
or the manner in which the sentence is being carried out.
Nichols v. Symmes, 553 F.3d 647, 649 (8th Cir.
2009); see also Matheny v. Morrison, 307 F.3d 709,
711-712 (8th Cir. 2002).
cannot entertain a petition for habeas corpus under §
2241, “if it appears that the applicant has failed to
apply for relief, by [§ 2255] motion, to the court which
sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by [§ 2255]
motion is inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e) (emphasis
added). The last clause is a provision sometimes referred to
as § 2255's “savings clause.”
Abdullah, 392 F.3d at 959.
petitioner who wishes to take advantage of the savings clause
must demonstrate that seeking relief from the sentencing
court would be inadequate or ineffective.
Lopez-Lopez, 590 F.3d at 907. But this exception is
narrow indeed. United States ex rel. Perez v. Warden, FMC
Rochester, 286 F.3d 1059, 1061-62 (8th Cir. 2002), cert.
denied, 537 U.S. 869 (2002). The fact that an individual is
barred from filing a § 2255 motion for procedural
reasons does not render the remedy inadequate or ineffective
so as to permit a petitioner to file under § 2241.
Lopez-Lopez, 590 F.3d at 907. Likewise, a §
2255 remedy is not deemed inadequate or ineffective merely
because the claim was previously ...