United States District Court, E.D. Arkansas, Eastern Division
Kristine G. Baker United States District Judge
Court has reviewed the Proposed Findings and Recommended
Disposition submitted by United States Magistrate Judge
Jerome T. Kearney (Dkt. No. 2). Also before the Court are
petitioner Jermaine Duane Irvin-Bey's motion for copies,
motion for judicial clarification, motion for release of
funds, motion for remedy, and two motions for order (Dkt.
Nos. 3, 4, 5, 7, 10, 12). Along with his motion for copies,
Mr. Irvin-Bey filed timely objections to the Proposed
Findings and Recommended Disposition (Dkt. No. 3, Ex. A).
After careful consideration of the Proposed Findings and
Recommended Disposition, the objections, and a de
novo review of the record, the Court concludes that the
Proposed Findings and Recommended Disposition should be, and
hereby are, approved and adopted in their entirety as this
Court's findings in all respects (Dkt. No. 2). The Court
dismisses without prejudice Mr. Irvin-Bey's petition for
writ of habeas corpus. The requested relief is
motion for copies, Mr. Irvin-Bey states that Exhibit A to his
motion serves as his objections to the Proposed Findings and
Recommended Disposition (Dkt. No. 3, at 3). Attached as
Exhibit A is a copy of Mr. Irvin-Bey's objections to the
presentence report from his criminal conviction in the United
States District Court for the Northern District of Texas for
which he is currently serving a sentence, Jermaine Duane
Irvin v. USA, No. 4:13-cr-00035-A-4 (Dkt. No. 3, Ex. A).
On July 27, 2015, Mr. Irvin-Bey filed a petition for
habeas corpus under 28 U.S.C. § 2255 in the
sentencing court seeking to vacate, set aside, or correct his
sentence, which the sentencing court denied. See Irvin v.
USA, No. 4:15-cv-00551-A, Dkt. No. 15 (N.D. Tex. Sept.
Proposed Findings and Recommended Disposition, Judge Kearney
determines that the claims Mr. Irvin-Bey attempts to bring in
his current habeas petition also challenge the
validity of his conviction or sentence as imposed. Such
claims must be brought under 28 U.S.C. § 2255 instead of
under 28 U.S.C. § 2241, the statute under which Mr.
Irvin-Bey claims to bring his current habeas
petition (Dkt. No. 2, at 4). However, as Judge Kearney notes,
if Mr. Irvin-Bey can affirmatively demonstrate that the
remedy provided by § 2255 is inadequate or ineffective
to test the legality of his detention, then Mr. Irvin-Bey may
challenge the validity of his criminal conviction under
§ 2241, an exception to the general bar on such claims
sometimes called the “savings clause.”
Eighth Circuit Court of Appeals has consistently held that
the “savings clause” may not be invoked to raise
an issue under § 2241 that could have been raised in a
direct appeal or in a § 2255 motion in the sentencing
district. Nichols v. Symmes, 553 F.3d 647, 650 (8th
Cir. 2009). The Eighth Circuit has expressly confirmed that
§ 2255 will not be viewed as inadequate or ineffective
“merely because § 2255 relief has already been
denied, or because petitioner has been denied permission to
file a second or successive § 2255 motion, or because a
second or successive § 2255 motion has been
dismissed[.]” United States v. Lurie, 207 F.3d
1075, 1077 (8th Cir. 2000) (internal citations omitted);
see also Hill v. Morrison, 349 F.3d 1089, 1091 (8th
Cir. 2003) (concluding that “in order to establish a
remedy is ‘inadequate or ineffective' under §
2255, there must be more than a procedural barrier to
bringing a § 2255 petition”).
Irvin-Bey's objections do not relate to his current
habeas petition. They do not show why the remedy
provided by § 2255 is inadequate or ineffective to test
the legality of his detention. Further, the savings clause
does not apply to Mr. Irvin-Bey merely because § 2255
relief was previously denied by the sentencing court. See
Irvin v. USA, No. 4:15-cv-00551-A (N.D. Tex. Sept. 15,
2015). Because Mr. Irvin-Bey has not shown that § 2255
is inadequate or ineffective to test the legality of his
detention, Mr. Irvin-Bey has failed to show that the savings
clause should apply to his current petition. As a result, the
Court dismisses without prejudice his current petition that
challenges the validity of his conviction or sentence as
imposed brought under § 2241.
Motion For Copies
motion for copies, Mr. Irvin-Bey requests copies of several
documents that are directly related to his criminal
conviction (Dkt. No. 3, at 5). Mr. Irvin-Bey asserts that
these documents are necessary “to prove error,
misrepresentation, fraud in the factum, dishonor, and a total
miscarriage of justice by the United States and its
agents/actors in violation of the Constitution.”
(Id., at 4). The documents that Mr. Irvin-Bey
requests do not appear to relate to his habeas
petition or application of the savings clause in this case.
Further, because the documents Mr. Irvin-Bey requests relate
to his criminal conviction, the sentencing court in the
United States District Court for the Northern District of
Texas has the requested documents, not this Court. Therefore,
this Court denies Mr. Irvin-Bey's motion for copies (Dkt.
Motion For Judicial Clarification
Irvin-Bey also filed a motion for judicial clarification
(Dkt. No. 4). In the motion, he requests clarification
regarding the legal basis for Judge Kearney's Proposed
Findings and Recommended Disposition and seeks a signed and
sworn affidavit from the Court (Id.). The Court will
not conduct legal research for or at the request of Mr.
Irvin-Bey, just as it will not conduct legal research for or
at the request of any litigant. The Court also will not
provide a signed and sworn affidavit to Mr. Ivrin-Bey.
on Mr. Irvin-Bey's motion, it is unclear to the Court if
he claims that he has not been able to access the
prison's law library. To the extent Mr. Irvin-Bey wishes
to pursue a claim based on access to the prison's law
library, Mr. Irvin-Bey may bring a separate claim in a
separate action based on his constitutional right of access
to the courts.
these reasons, the Court denies Mr. Irvin-Bey's motion
for judicial clarification (Dkt. No. 4).
Motion For ...