United States District Court, D. Minnesota
Cherron Marie Phillips, Reg. No. 45209-424, pro se plaintiff.
Voss and Ann M. Bildtsen, Assistant United States Attorneys,
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
R. TUNHEIM CHIEF JUDGE
Cherron Phillips was convicted by a jury of retaliating
against a federal judge or law enforcement officer in
violation of 18 U.S.C. § 1521 and 1522 in the United
States District Court for the Northern District of Illinois.
Phillips v. United States, Civ. No. 17-1338-MJR,
2017 WL 3531677, at *1 (N.D. Ill. Aug. 17, 2017). She was
sentenced to a term of imprisonment of 84 months.
Id. at *2.
subsequently filed a 28 U.S.C. § 2255 motion in the
Northern District of Illinois seeking to collaterally attack
her sentence. See generally Id. She asserted a
number of arguments, including that the statute she was
convicted of violating was unconstitutional and that the
statute had not been properly enacted by Congress.
Id. at *2. Although the Northern District of
Illinois made no mention of it, Phillips asserts she also
argued that the conduct underlying her conviction was
protected by the First Amendment. (Obj. to R. & R. at 1,
Jan. 3, 2019, Docket No. 4.)
Phillips's motion was foreclosed by the one-year statute
of limitations and was procedurally deficient because
Phillips had not appealed the issues she was then asserting,
the court considered the merits of her arguments and denied
her claims. Id. at *7. Phillips appealed the denial,
and the Seventh Circuit Court of Appeals dismissed her
appeal. (Obj. to R. & R. at 1.)
November 29, 2018, Phillips filed a Petition for Writ of
Habeas Corpus in this District pursuant to 28 U.S.C. §
2241. (Pet., Nov. 29, 2018, Docket No. 1.) Phillips claims
that because the conduct she was convicted of is protected by
the First Amendment and the statute of conviction was not
properly enacted by Congress, her confinement is unlawful.
(Id. at 2-3.) Magistrate Judge David T. Schultz
considered the arguments and wrote a Report and
Recommendation (“R&R”) recommending that the
Court deny the Petition. (R. & R. at 3, Dec. 12, 2018,
Docket No. 2.) The Magistrate Judge noted that Phillips had
already raised her arguments in her earlier § 2255
motion and that she had not shown why a § 2255 motion
would be inadequate or ineffective to challenge her
conviction. Because a § 2255 motion is available to
Phillips, the Magistrate Judge reasoned, § 2255(e)'s
exclusive provision clause stripped this Court of
jurisdiction over Phillips's § 2241 petition.
now objects to the R&R. She acknowledges that a §
2255 motion would generally provide the proper vehicle for
her complaints. However, Phillips argues that her § 2241
Petition is nevertheless appropriate because a § 2255
motion would be inadequate or ineffective in this case.
Specifically, she argues that a § 2255 motion is
inadequate because “she has been procedurally
obstructed from an effective collateral review.” (Obj.
to R. & R. at 4.) She states that the “Executive
Committee” established by the Northern District of
Illinois “has deemed Phillips a restricted
filer.” (Id. at 5.) As such, she claims that
the Executive Committee has interfered with her pending
§ 2255 proceedings, and that a § 2255 motion is
therefore an inadequate remedy with which to argue her
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 v. Hedrick, 392 F.3d
957, 959 (8th Cir. 2004) (quoting Hill v.
Morrison, 349 F.3d 1089, 1091 (8th Cir.
2003). The fact that the Executive Committee may be limiting
or delaying Phillips's motions does not provide cause for
finding a § 2255 motion “inadequate or
ineffective.” Instead, the Executive Committee's
actions are nothing more than a procedural barrier. Thus,
Phillips has not shown why she is entitled to the savings
clause of § 2255(e). Accordingly, the Court is without
jurisdiction to hear her § 2241 Petition.
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED that
1. The Magistrate Judge's Report and Recommendation
[Docket No. 2] is ADOPTED.
2. Petitioner Phillip's 28 U.S.C. § 2241 Petition
for Writ of Habeas Corpus [Docket No. 1] is DENIED
JUDGMENT BE ...