United States District Court, D. Minnesota
ORDER ON REPORT AND RECOMMENDATION
E. Brasel United States District Judge
a habeas action brought under 28 U.S.C. § 2241 by
petitioner Penny Coleman (“Coleman”). [ECF No. 1
(“Pet.”).] In a Report and Recommendation dated
October 10, 2018, United States Magistrate Judge Tony N.
Leung recommended that the petition be dismissed without
prejudice for lack of jurisdiction because Coleman has never
before challenged her drug sentence under 28 U.S.C. §
2255. [ECF No. 5 (“R&R”) at 4-5.] Coleman
objects to the R&R. [ECF No. 6 (“Pet'r's
Obj.”).] The respondent Warden Barnes asserts that the
R&R should be adopted in its entirety. [ECF No. 7.] For
the reasons set forth below, the Court overrules
Coleman's objections, accepts the R&R, and dismisses
the petition without prejudice for lack of jurisdiction.
underlying facts are not in dispute and will not be repeated
except as necessary. Coleman pleaded guilty to separate
offenses in two separate criminal proceedings in the United
States District Court for the Eastern District of Missouri.
In the first proceeding, Coleman pleaded guilty to being a
felon in possession of a firearm in violation of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), and was sentenced to the statutory minimum of 180
months' imprisonment. See United States v.
Coleman, No. 1:14-CR-0029, ECF No. 57 (E.D. Mo. Judgment
Jan. 20, 2015). In the second proceeding, Coleman pleaded
guilty to distribution of cocaine base and was sentenced to a
concurrent 180-month term of imprisonment. See United
States v. Coleman, No. 1:14-CR- 0080, ECF No. 31 (E.D.
Mo. Judgment Jan. 20, 2015). Coleman did not seek direct
appeal from either conviction. She twice challenged her ACCA
conviction and sentence in the Eastern District of Missouri
pursuant to 28 U.S.C. § 2255. Coleman's first §
2255 motion, which challenged her ACCA conviction in light of
Johnson v. United States, 135 S.Ct. 2551 (2015), was
denied on the merits. See Coleman v. United States,
No. 1:16CV0121 SNLJ, 2016 WL 5390933, at *3 (E.D. Mo. Sep.
27, 2016) (finding that Coleman's three ACCA predicate
conviction classifications were unaffected by
Johnson). The sentencing court denied her second
§ 2255 motion without prejudice because Coleman had not
obtained permission from the Eighth Circuit Court of Appeals
to file a second or successive motion under § 2255.
See Coleman v. United States, No. 1:17-CV-0104, ECF
Nos. 2, 3 (E.D. Mo. Mem. & Order dated Aug. 3, 2017).
is currently a prisoner at the Federal Correctional
Institution at Waseca, Minnesota, and filed her § 2241
petition in this District. Her petition references only her
drug conviction, and asserts that she had previously filed a
§ 2255 motion based on the conviction at issue. (Pet. at
1-2, 4.) When the Magistrate Judge asked Coleman to clarify
her basis for relief, she responded that a § 2241
petition was appropriate because no other vehicle for relief
was available for her to raise a claim under Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). [See ECF No. 3
at 3.] She argues that the sentencing court incorrectly
applied a career-offender enhancement in light of
Dimaya. (Id.) Coleman references both
career- offender and “‘armed'
career-offender” enhancements, suggesting that she
intended to challenge both the ACCA and drug convictions in
her petition. (Id.) But Coleman received the
mandatory minimum sentence for her ACCA conviction.
See 18 U.S.C. § 924(e). Because no enhancement
was applied to Coleman's ACCA sentence, any sentencing
enhancement argument regarding her ACCA conviction is moot.
Thus, Coleman's career- offender enhancement argument is
relevant only to her drug sentence. (See R&R at
objection to the R&R, Coleman reiterates that she seeks
relief from her sentence through this habeas petition
pursuant to Dimaya. (Pet'r's Obj. at 2.)
“[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 … 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) (citation omitted).
Coleman relies upon § 2255's “savings
clause” to argue that her habeas petition should not be
dismissed. Section 2255(e) provides that a court shall not
entertain a habeas petition
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); see Hill,
349 F.3d at 1091 (referring to § 2255(e) as
“[§] 2255's ‘savings
maintains that this savings clause provides a path for her to
challenge the execution of her sentence under § 2241
after filing successive § 2255 motions. She cites
Cox v. Krueger, No. 17-1099, 2017 WL 4706898 (C.D.
Ill. Oct. 19, 2017), in support of her position. In that
case, Cox had several prior convictions when he was convicted
of multiple charges, including being a felon in possession of
a firearm. Id. at *1-*2. The sentencing court
applied the ACCA enhancement to sentence Cox to life
imprisonment for his firearm convictions; he would have
received a 10-year sentence without it. Id. at *2.
Cox filed a § 2255 motion to vacate his conviction and
sentence; the district court resentenced him on one count and
denied the balance of his motion. Id. After the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2251 (2015), Cox sought leave to file
a second or successive § 2255 motion. Id. The
Eighth Circuit denied authorization to file the second or
successive motion. Id. Cox then filed a habeas
petition under § 2241 challenging his ACCA conviction,
arguing that “following Johnson, he no longer
qualifies as an Armed Career Criminal.” Id.
Cox maintained that he was entitled to proceed under §
2241 because § 2255 was “inadequate or
ineffective.” Id. The court agreed, finding
that § 2255 was inadequate or ineffective to test the
legality of Cox's sentence “because the Eighth
Circuit denied Cox authorization to file a second or
successive § 2255 motion based on
Johnson.” Id. at *6.
the Cox decision were binding on this Court, it
would not control the outcome here because the decision is
distinguishable from the instant proceeding. In Cox,
the § 2241 petition challenged Cox's ACCA conviction
in light of Johnson. In the instant petition,
Coleman challenges the execution of her sentence; she does
not challenge her convictions. In Cox, the Eighth
Circuit had denied authorization to file a second or
successive § 2255 motion. Id. at *2. Here,
Coleman does not assert that she sought leave to file a
second or successive § 2255 motion from the Eighth
Circuit, or that such leave was denied. See 28
U.S.C. § 2255(h); Hill, 349 F.3d at 1090
(“Before a trial court may consider a second or
successive § 2255 motion … a petitioner must
obtain permission from the court of appeals.”).
first § 2255 motion only challenged her ACCA conviction
and sentence; it did not challenge her drug conviction or
sentence. See Coleman, 2016 WL 5390933, at *1
(noting that because Coleman did not contend that the
sentence for her drug conviction was imposed improperly,
“there is no need to address any issue related to that
conviction or sentence”). As for her second § 2255
motion, Coleman claims that she “sought relief from her
drug conviction, as well as her firearms convictions, ”
and that motion was denied because she had not procured the
necessary authorization from the Eighth Circuit.
(Pet'r's Obj. at 3.) A review of Coleman's second
§ 2255 motion demonstrates that it only challenged her
ACCA conviction; it did not mention her drug conviction at
all. See Coleman, No. 1:17-CV-0104, ECF No. 1 (Jun.
21, 2017). Thus, contrary to Coleman's assertions, she
has never challenged her drug conviction or sentence under
§ 2241 petition challenges the sentence enhancements
applied to her drug conviction. Since Coleman has not yet filed a
§ 2255 motion challenging her drug conviction or
sentence, she may file her first § 2255 motion to seek
relief under Dimaya in that
proceeding.See 28 U.S.C. § 2255(f)(3).
Because § 2255 is not inadequate or ineffective to the
task of allowing Coleman to test her sentence under