United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
T. SCHULTZ, UNITED STATES MAGISTRATE JUDGE.
2002, petitioner James Thornberg pleaded guilty to charges of
wire fraud and money laundering in the United States District
Court for the District of South Dakota. See United States
v. Thornberg, 326 F.3d 1023, 1024 (8th Cir. 2003). As a
result, Thornberg was sentenced to a total of 96 months of
imprisonment with three years of supervised release to
follow. Id.; Petition at 1 [ECF No.
While serving that prison term, Thornberg absconded from the
Federal Prison Camp in Duluth, Minnesota, remaining on the
lam for over six years until finally apprehended in 2010.
See United States v. Thornberg, 676 F.3d 703, 705
(8th Cir. 2012). For this, Thornberg was found guilty of
escape from custody and received another 30-month term of
imprisonment in this District (to be served consecutively to
the term imposed in South Dakota), with three years of
supervised release again to follow. Id.; Petition at
1. Thornberg completed his term of imprisonment on September
6, 2017, see Petition at 2, and is now subject to
the conditions of supervised release imposed on him both in
this District and in South Dakota.
matter is before the Court on Thornberg's petition for a
writ of habeas corpus. See 28 U.S.C. § 2241.
Thornberg's habeas corpus claim goes like this: Under the
statute governing the wire-fraud offense for which he was
convicted, the South Dakota court could not have lawfully
imposed a term of imprisonment of longer than 60 months. Had
the South Dakota court in fact imposed a term of imprisonment
of 60 months or less -rather than the 96 months that
Thornberg in fact received - then his release from detention
would have been effected much sooner. And had the release
from prison been affected sooner, Thornberg's concurrent
terms of supervised release would likewise have begun sooner
and would at this point have expired. Thornberg therefore
asks that the Court to correct the South Dakota sentence,
deem that his supervised release terms were
“served” while he was in prison, and free him
from all ongoing supervised-release obligations.
petition is fatally flawed for at least two reasons.
First, the Court lacks jurisdiction over the
petition. What Thornberg ultimately seeks is a
declaration from the Court that a sentence imposed by another
federal court was unlawful. But “[i]t is well settled a
collateral challenge to a federal conviction or sentence must
generally be raised in a motion to vacate filed in the
sentencing court under [28 U.S.C.] § 2255 . . . and not
in a habeas petition filed in the court of incarceration . .
. under § 2241.” Hill v. Morrison, 349
F.3d 1089, 1091 (8th Cir. 2003). Federal district courts lack
jurisdiction to hear a federal prisoner's collateral
challenge to his original conviction or sentence brought in a
habeas petition, unless the prisoner demonstrates that the
remedy provided by § 2255 is inadequate or ineffective
to test the legality of his detention. See 28 U.S.C.
§ 2255(e) (“An application for a writ of habeas
corpus [on] behalf of a [federal] prisoner . . . shall not be
entertained . . . unless it also appears that the remedy by
motion is inadequate or ineffective to test the legality of
his detention.”); DeSimone v. Lacy, 805 F.2d
321, 323 (8th Cir. 1986) (per curiam). The “inadequate
or ineffective remedy” exception is often referred to
as the “savings clause.” See Abdullah v.
Hedrick, 392 F.3d 957, 959 (8th Cir. 2004).
the Supreme Court nor the Eighth Circuit Court of Appeals has
set forth the exact contours of the savings clause. It is
clear, however, that the savings clause applies very
narrowly. For example, “[i]t is well established 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.”
Abdullah, 392 F.3d at 959. Thus, it is not enough to
show that a motion under § 2255 would now be untimely,
or that the motion is now barred as “second or
successive.” See United States v. Lurie, 207
F.3d 1075, 1077 (8th Cir. 2000) (collecting
cases). At a minimum, the petitioner seeking to invoke the
savings clause must show that he “had no earlier
procedural opportunity to present his claims.”
Abdullah, 392 F.3d at 963; accord United States
v. Barrett, 178 F.3d 34, 52 (1st Cir. 1999)
(“[W]here a prisoner had an opportunity to present his
claim properly in his first § 2255 petition, but failed
to do so, any ‘ineffectiveness' of his current
§ 2255 petition is due to him and not to §
prevented Thornberg from raising the issue of his putatively
unlawful sentence on direct appeal or in a motion under
§ 2255 filed in the District of South Dakota. That
Thornberg did not avail himself of these opportunities does
not render § 2255 inadequate or ineffective to challenge
his sentence. The exclusive-remedy rule of § 2255(e)
therefore applies, and Thornberg cannot seek habeas corpus
relief in this District from the South Dakota sentence.
even if this Court did have jurisdiction over the habeas
petition, Thornberg's claim is without merit. Thornberg
is correct that the maximum sentence for wire fraud was 60
months' imprisonment at the time he was convicted in
South Dakota. See 18 U.S.C. § 1343 (1994). That
said, Thornberg received a sentence of only 60 months'
imprisonment for committing wire fraud; the remainder of his
96-month sentence consisted of a consecutive 36-month term of
imprisonment for money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i). See Thornberg, 326 F.3d at
1024-25. Neither the sentence imposed for wire fraud nor the
consecutive sentence imposed for money laundering exceeded
the maximum sentences imposed by the statutes criminalizing
wire fraud and money laundering, respectively. By all
indications, Thornberg served the appropriate amount of time
in prison, and he is now properly subject to conditions of
event, this Court lacks jurisdiction over the habeas petition
for the reasons explained above, and it is therefore
recommended that this matter be dismissed without prejudice
on that basis. Thornberg's motion for a response for the
government [ECF No. 3] should be denied, as no response is
necessary in this matter.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED THAT:
1. This matter be DISMISSED WITHOUT PREJUDICE for lack of
2. Petitioner James Thornberg's motion for a response
[ECF No. 3] be DENIED.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not