United States District Court, E.D. Arkansas, Eastern Division
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to Chief United States District Judge Brian S. Miller. 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
record reflects that petitioner Carlos Perry
(“Perry”) pleaded guilty in the United States
District Court for the Western District of Virginia
(“Western District of Virginia”) to, inter
alia, one count of mail fraud. See Docket Entry
7, Exhibit 1. United States District Judge James P.
Jones sentenced Perry to the custody of the Federal Bureau of
Prisons (“BOP”) for a term of 144 months
imprisonment. See Docket Entry 7, Exhibit 2. Perry
filed a pro se notice of appeal, but the United
States Court of Appeals for the Fourth Circuit (“Fourth
Circuit”) dismissed the appeal because he failed to
file a timely notice of appeal. See Docket Entry 7,
thereafter filed a motion pursuant to 28 U.S.C. 2255 in the
Western District of Virginia. In the motion, he raised the
... counsel provided ineffective assistance by (1) improperly
advising [Perry] to plead guilty to an Information charging
crimes that he did not commit; (2) failing to rebut the
government's rationale for an upward variance; (3)
failing to challenge the loss amount; (4) failing to present
mitigating evidence; and (5) failing to argue for a sentence
below the guidelines range based on substantial assistance.
See Docket Entry 7, Exhibit 4 at CM/ECF 5. Perry
also maintained that Judge Jones abused his discretion by
applying an upward variance to the guideline range. Judge
Jones denied the motion and a certificate of appealability.
See Docket Entry 7, Exhibit 4 and 5. Perry appealed.
The Fourth Circuit denied his request for a certificate of
appealability and dismissed the appeal. See Docket
Entry 7, Exhibit 6.
seven months after the Fourth Circuit denied Perry's
request for a certificate of appealability, he began the case
at bar by filing a petition for writ of habeas corpus
pursuant to 28 U.S.C. 2241. In the petition, he again
challenged his trial attorney's performance and the
sentence imposed by Judge Jones.
Gene Beasley (“Beasley”) filed a response to
Perry's petition and asked that it be dismissed for lack
of subject matter jurisdiction. Beasley so maintained because
Perry's petition presented “the same claims he
raised in his [28 U.S.C. 2255] motion filed in the sentencing
court.” See Docket Entry 7 at CM/ECF 2.
filed a reply in which he acknowledged that his motion
pursuant to 28 U.S.C. 2255 had been denied by Judge Jones,
and a request for a certificate of appealability had been
denied by the Fourth Circuit. Perry nevertheless maintained
that the United States District Court for Eastern District of
Arkansas (“Eastern District of Arkansas”) had
subject matter jurisdiction to consider the petition at bar,
one pursuant to 28 U.S.C. 2241.
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.” See Alexander v. Haynes, 2013 WL
5507665, 3 (E.D. Ark. 2013) (Miller, J.). He may challenge
the execution of his sentence, though, by filing a petition
pursuant to 28 U.S.C. 2241 in the district of his
incarceration. See Id. The scope of the latter
proceeding is as follows:
A court cannot entertain a petition for habeas corpus under
2241, “if it appears that the applicant has failed to
apply for relief, by  motion, to the court which
sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by  motion is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e) (emphasis added).
This latter provision is generally referred to as 2255's
To qualify for the savings clause, a petitioner must
demonstrate that seeking relief from the sentencing court
would be inadequate or ineffective. Lopez-Lopez, 590
F.3d at 907 (citing Abdullah, 392 F.3d at 959). But
this exception is a “narrowly circumscribed safety
valve.” United States ex rel. Perez v. Warden, FMC
Rochester, 286 F.3d 1059, 1061-62 (8th Cir.2002),
cert. denied, 537 U.S. 869, 123 S.Ct. 275,
154 L.Ed.2d 117 (2002). The fact that an individual is barred
from filing a 2255 motion for procedural reasons does not
render the remedy inadequate or ineffective.
Lopez-Lopez, 590 F.3d at 907. The 2255 remedy is not
inadequate or ineffective because the claim was previously
raised in a 2255 motion but rejected because the petitioner
was denied leave to file a second or successive 2255 petition
or because a 2255 petition was time-barred. Id.
See Id. The phrase “inadequate or
ineffective” has not been thoroughly defined. See
United States v. Lurie, 207 F.3d 1075 (8th Cir.
2000). Courts have, though, identified some of
the conditions a petitioner must satisfy to gain the benefit
of the savings clause. For instance, in Mathison v.
Berkebile, 988 F.Supp.2d 1091, 1097-1098 (D.S.D. 2013),
a federal district court in this circuit adopted the