United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Government's Motion to
Dismiss the Petition for a Writ of Habeas Corpus. (Docket No.
7.) Petitioner Isaac Hodge filed a timely response. (Docket
No. 8.) For the following reasons, the Motion is granted and
the Petition is dismissed.
2012, Petitioner Isaac Hodge pleaded guilty to conspiracy to
distribute marijuana in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C) and 846. United States v.
Hodge, No. 12-cr-7 (RHK), Docket No. 6 (D. Minn. filed
Jan. 12, 2012). The parties agreed to a 90-month prison
sentence, pursuant to Fed. R. Crim. P. 11(c)(1)(C), and Hodge
waived his right to appeal and his right to collaterally
attack his conviction or sentence under 28 U.S.C. §
2255. The Court sentenced Hodge to 90 months in prison. Hodge
did not appeal his conviction or sentence.
2014, Hodge filed a motion to vacate his sentence under 28
U.S.C. § 2255. The Court enforced his waiver and denied
the motion. Hodge, No. 12-cr-7 (RHK), Docket No. 20
(D. Minn. filed Apr. 14, 2015). Hodge sought permission to
file a second or successive § 2255 motion in 2016, but
the Court of Appeals denied that request. Hodge v. United
States, No. 16-2037 (8th Cir. Mar. 23, 2017).
filed this § 2241 Petition on May 26, 2017. (Docket No.
1). He argues that he has newly discovered evidence that he
is actually innocent because his trial counsel failed to
recognize that he was convicted and sentenced under the
federal prisoner has two options when pursuing postconviction
relief. First, the prisoner may challenge the validity of his
conviction or sentence by bringing a motion to vacate the
sentencing judgment under 28 U.S.C. § 2255. United
States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000).
Second, the prisoner may challenge the execution of a
sentence by filing a petition for a writ of habeas corpus
under 28 U.S.C. § 2241. Matheny v. Morrison,
307 F.3d 709, 711 (8th Cir. 2002). Typically, the exclusive
remedy for a collateral attack on the validity of a
conviction or sentence is a § 2255 motion, and a
prisoner cannot evade § 2255's procedural
restrictions by raising that type of claim in a § 2241
petition. Abdullah v. Hedrick, 392 F.3d 957, 959
(8th Cir. 2004).
claim is properly brought as a § 2255 motion, not a
§ 2241 petition, because he challenges the validity of
his conviction and sentence. But he has already brought a
§ 2255 motion, and the Court of Appeals barred him from
bringing a second or successive § 2255 motion. Thus,
this Court may exercise jurisdiction over the Petition only
if § 2255's savings clause applies.
savings clause of § 2255 permits a petition under §
2241 if the § 2255 remedy is inadequate or ineffective
to test the legality of a conviction or a sentence.”
Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir.
2010) (citing 28 U.S.C. § 2255(e)). “[I]n order to
establish [that] a remedy is ‘inadequate or
ineffective' under § 2255, there must be more than a
procedural barrier to bringing a § 2255 petition.”
Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir.
2003). And “§ 2255 is not inadequate or
ineffective where a petitioner had any opportunity to present
his claim beforehand.” Abdullah, 392 F.3d at
Hodge had a prior opportunity to present this claim though a
§ 2255 motion. Although he waived his post-conviction
rights in the plea agreement, he was nevertheless free to
challenge his sentence as illegal. See Ackerland v.
United States, 633 F.3d 698, 702 (8th Cir. 2011)
(“[A]n otherwise valid waiver of post-conviction rights
or appeal rights does not prevent a defendant from attacking
‘an illegal sentence.'” (quoting United
States v. Andis, 333 F.3d 886, 891-92 (8th Cir. 2003)
(en banc); DeRoo v. United States, 223 F.3d 919, 923
(8th Cir. 2000))). Hodge cannot establish that § 2255 is
inadequate or ineffective to test the legality of his
savings clause of § 2255 is jurisdictional.
Hill, 349 F.3d at 1091. In other words, unless
§ 2255's savings clause applies, this Court lacks
jurisdiction to consider a challenge to Hodge's
conviction or sentence in a § 2241 petition. The Court
therefore lacks jurisdiction to consider Hodge's claim.
Hodge's attempt to disguise this § 2255 claim as a
§ 2241 petition fails, and this Petition must be
contends that § 2255 is inadequate or ineffective
because he is actually innocent. However, even if the
collateral attack on his conviction and sentence was
procedurally proper, Hodge is not actually innocent.
“[H]abeas corpus petitions that advance a substantial
claim of actual innocence are extremely rare.”
Schlup v. Delo, 513 U.S. 298, 321 (1995). And
“‘actual innocence' means factual innocence,
not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623-24 (1998) (citing Sawyer
v. Whitley, 505 U.S. 333, 339 (1992)).
succeed on a claim of actual innocence, a petitioner must (1)
support his allegations of constitutional error “with
new reliable evidence” and (2) establish “that it
is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.”
Bowman v. Gammon, 85 F.3d 1339, 1346 (8th Cir. 1996)
(quoting Schlup, 513 U.S. at 324, 327); see
Bousley, 523 U.S. at 624 (“In cases where the
Government has foregone more serious charges in the course of
plea bargaining, petitioner's showing of actual innocence
must also extend to those charges.”). Evidence is new
“only if it was not available at trial and could not
have been discovered earlier through the exercise of due
diligence.” Johnson v. Norris, 170 F.3d 816,
818 (8th Cir. 1999) (quoting Amrine v. Bowersox, 128
F.3d 1222, 1230 (8th Cir. 1997) (en banc)). Hodge does not
direct the Court to any evidence that was not already
available or could not have been discovered through the
exercise of ...