United States District Court, E.D. Arkansas, Eastern Division
STEPHEN SCHNEIDER Reg. #19941-031 PETITIONER
GENE BEASLEY RESPONDENT
Kristine G. Baker United States District Judge.
the Court is the Recommended Disposition submitted by United
States Magistrate Judge Beth Deere (Dkt. No. 3). Petitioner
Stephen Schneider filed a motion for an extension of time to
file objections to the Recommended Disposition (Dkt. No. 4).
The Court grants his motion for extension of time (Dkt. No.
4). Mr. Schneider also filed objections to the Recommended
Disposition and an addendum, both of which this Court
considers (Dkt. Nos. 5, 6). After careful consideration of
the Recommended Disposition, the objections, the addendum,
and a de novo review of the record, the Court adopts
the Recommended Disposition to the extent it concludes that
the Court does not have jurisdiction to consider Mr.
Schneider's petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (Dkt. No. 3). Because the
Court concludes that it lacks subject matter jurisdiction,
the Court denies as moot Mr. Schneider's motion for leave
to proceed in forma pauperis (Dkt. No. 1).
Court adopts the reasoning in the Recommended Disposition and
writes separately to explain further its reasoning that it
lacks jurisdiction. In 2010, Mr. Schneider was convicted on
multiple counts and sentenced to 360 months in prison.
United States v. Schneider, 6:07-CR-10234-JTM-1 (D.
Kan. July 10, 2010) (Dkt. Nos. 493, 495). Mr. Schneider then
filed an unsuccessful direct appeal to the Tenth Circuit
Court of Appeals. United States v. Schneider, 704
F.3d 1287 (10th Cir. 2013), cert. denied, 570 U.S.
923 (2013). Mr. Schneider next filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255, and the
sentencing court granted Mr. Schneider partial relief by
reinstating his 360-month sentence but eliminating his
restitution requirement. Schneider,
6:07-CR-10234-JTM-1 (Dkt. Nos. 759, 788, 805).
an unsuccessful appeal of the district court's grant of
partial relief, Mr. Schneider filed a second motion to vacate
pursuant to 28 U.S.C. § 2255, which the sentencing court
denied on February 14, 2018, as a successive petition.
Schneider, 6:07-CR-10234-JTM-1 (Dkt. Nos. 837, 841).
The sentencing court denied Mr. Schneider a certificate of
appealability as to the denial of his second § 2255
petition. Schneider, 6:07-CR-10234-JTM-1 (Dkt. No.
841). Mr. Schneider has presented no evidence to this Court
that he appealed the denial of his second § 2255
petition or sought a certificate of appealability from the
Tenth Circuit. Mr. Schneider then filed his present petition
in this Court pursuant to 28 U.S.C. § 2241.
Court does not have jurisdiction to consider Mr.
Schneider's § 2241 petition. Federal law is clear
that a collateral challenge to a federal conviction or
sentence must generally be raised in a motion to vacate filed
in the sentencing court under § 2255-in this case, the
District of Kansas-and not in a habeas petition filed in the
court where the petitioner is incarcerated-in this case, the
Eastern District of Arkansas-under § 2241. See Hill
v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003)
(citation omitted). Section 2255's “savings
clause” does provide a narrow exception to this rule by
providing that an application for relief under § 2255:
shall not be entertained 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
28 U.S.C. § 2255 (emphasis added). The effect of this
“savings clause” is that a federal prisoner may
file a § 2241 petition challenging his federal sentence
or conviction if he establishes that the remedy provided
under § 2255 is otherwise inadequate or ineffective.
question before the Court is whether Mr. Schneider has met
his burden of demonstrating that § 2255 was inadequate
or ineffective to test the legality of his conviction.
See Hill, 349 F.3d at 1091 (noting that the
prisoner has the burden of demonstrating that §
2255's savings clause applies). The Eighth Circuit Court
of Appeals has held that:
a § 2255 motion is not “inadequate or
ineffective” merely because: (1) “§ 2255
relief has already been denied, ” (2) “[the]
petitioner has been denied permission to file a second or
successive § 2255 motion, ” (3) “a second or
successive § 2255 motion has been dismissed, ” or
(4) “[the] petitioner has allowed the one year statute
of limitations and/or grace period to expire.”
Hill, 349 F.3d at 1091 (quoting United States v.
Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (alterations
in original) (citations omitted). Furthermore, “[a]
prisoner cannot raise, in a § 2241 motion filed in the
district of incarceration, an issue which could or was
actually raised in the § 2255 motion filed in the
sentencing district.” Id. at 1092 (citing
Lurie, 207 F.3d at 1077-78).
Schneider argues that, when the sentencing court dismissed
his second § 2255 petition on the grounds that it was an
unauthorized “second or successive” petition, the
sentencing court erroneously denied him a remedy under §
2255 (Dkt. Nos. 2, at 2; 5, at 2-5). According to Mr.
Schneider, this means that he is entitled to proceed under
§ 2241 (Dkt. No. 5, at 3). In support of his argument
that the sentencing court's denial of his second §
2255 motion was in error, Mr. Schneider cites to Magwood
v. Patterson, 561 U.S. 320 (2010). There, the Supreme
Court held that a petitioner's second § 2254
petition was not barred as “second or successive”
because the second § 2254 petition did not challenge the
same judgment as the original § 2254 petition. 561 U.S.
at 324. Relying upon Magwood, Mr. Schneider argues
that, because the sentencing court resentenced him and issued
a new judgment, his second § 2255 motion is not barred
(Dkt. No. 5, at 3). Mr. Schneider argues that the sentencing
court erroneously denied his second § 2255 motion, and
therefore, “he should be allowed to proceed through the
section 2241 gateway . . . .” (Id.).
Court concludes that Mr. Schneider has failed to meet his
burden of demonstrating that § 2255 relief is
unavailable or ineffective to test the legality of his
conviction. Assuming arguendo that the sentencing
court erroneously dismissed Mr. Schneider's second §
2255 motion, it is not the case that § 2255 is
“unavailable or ineffective to test the legality”
of Mr. Schneider's conviction. First, Mr. Schneider has not
demonstrated any reason why his present argument concerning
Magwood could not have been presented to the
sentencing court. Further, Mr. Schneider has presented no
evidence that he filed a notice of appeal of the sentencing
court's denial of his second § 2255 motion or that
he directly requested a certificate of appealability from the
Tenth Circuit. In other words, it appears that Mr. Schneider
could have raised the argument that he is entitled to a
second § 2255 motion before the sentencing court or the
Tenth Circuit, but he did not. As “[a] prisoner cannot
raise, in a § 2241 motion filed in the district of
incarceration, an issue which could or was actually raised in
the § 2255 motion filed in the sentencing district,
” the Court concludes that Mr. Schneider has failed to
show that his available remedies under § 2255 were
inadequate or ineffective. Hill, 349 F.3d at 1092
(citation omitted)). Therefore, Mr. Schneider's petition
for writ of habeas corpus is dismissed without
prejudice for lack of jurisdiction (Dkt. No. 2)
therefore ordered that:
Court adopts the Recommended Disposition to the extent it
recommends dismissal without prejudice of Mr. Schneider's