United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
R. THORSON, UNITED STATES MAGISTRATE JUDGE
Malone, currently incarcerated at the Federal Correctional
Institution in Sandstone, Minnesota, filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241. This
petition is before the Court for review under Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons stated below, the Court
lacks jurisdiction over the petition because 28 U.S.C. §
2255 is not an inadequate or ineffective remedy to test the
legality of his detention, and Malone has not received prior
authorization from the Eighth Circuit to proceed under §
2255. Therefore, this Court recommends that this matter be
dismissed without prejudice.
1995, Malone was found guilty after a jury trial in this
District on nine counts related to drug distribution,
conspiracy to commission murder for hire, and possession of a
firearm in connection with a crime of violence. See
United States v. Malone, No. 3:94-CR-0106 (PAM/JGL) (D.
Minn.). Malone was originally sentenced to life imprisonment
on several of the charges, plus an additional mandatory
consecutive term of 60 months' imprisonment on the gun
offense, see 18 U.S.C. § 924(c)(1)(A)(i), but
subsequent amendments to Malone's recommended sentencing
range under the United States Sentencing Guidelines have
resulted in his sentence being reduced to 352 months'
imprisonment, see 18 U.S.C. § 3582(c)-60 months
on the gun charge, and 292 months (or less) on the other
charges, with the gun sentence running consecutive to the
has attempted to challenge the validity of his conviction and
sentence on several occasions pursuant to 28 U.S.C. §
2255. Those efforts have proved largely unsuccessful.
Malone's initial § 2255 motion was granted in part,
but his overall sentence remained unchanged following those
proceedings, and he failed to file a timely notice of appeal
from the order despite having been granted a certificate of
appealability. Malone has also requested on several occasions
to file second or successive motions under § 2255,
including as recently as 2016 with a claim pursuant to the
then-recent decision in Johnson v. United States,
135 S.Ct. 2551 (2015), but each of these requests for
authorization has been denied by the Eighth Circuit.
action under § 2241, Malone challenges the validity of
his gun conviction pursuant to Johnson and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which
expanded upon Johnson. “It 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 § 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 under § 2241 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 in 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 require
authorization due to being second or successive. See
United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir.
2000) (collecting cases).
argues that he fits within the narrow aperture of the savings
clause because it would be impossible for him to present his
Johnson and Dimaya claim in any other way.
Malone has already challenged his convictions and sentence
pursuant to § 2255. Any subsequent motion under §
2255 attacking those convictions would therefore be second or
successive and require authorization from the Eighth Circuit
Court of Appeals. See 28 U.S.C. § 2255(h). The
authorization requirement, in and of itself, does not render
§ 2255 inadequate or ineffective, as Malone recognizes;
§ 2255 would remain available as a means for relief,
albeit with an additional procedural step required before a
motion could be brought in the district court. But the court
of appeals is permitted only to authorize particular kinds of
claims-either claims that are based on “newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense, ” 28
U.S.C. § 2255(h)(1); or claims that are based on
“a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable, ” 28 U.S.C. § 2255(h)(2).
Other claims, even otherwise meritorious claims, simply
cannot be authorized by the court of appeals under §
2255(h) for further consideration by the district court.
“newly discovered evidence” pathway is irrelevant
to this case; Malone does not contend that his claim is
predicated upon recent factual discoveries. Malone also
argues that he cannot avail himself of the pathway for
“new rule[s] of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, ” 28
U.S.C. § 2255(h)(2), because his claim is predicated
upon a new rule of statutory law, not constitutional
law. Malone contends that Johnson and
Dimaya rendered § 924(c) invalid as applied to
him, but that this new, putatively statutory rule cannot be
invoked in a second or successive § 2255 proceeding, as
§ 2255(h) does not permit authorization of the claim.
Thus, Malone continues, § 2255 is inadequate or
ineffective for his purposes, and he should be permitted to
proceed via habeas corpus. See 28 U.S.C. §
though not all, circuits have concluded that habeas corpus
relief is appropriate where-as Malone argues is the case
here-the petitioner relies on a new rule of statutory law
made retroactive to cases on collateral review. See
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir.
2018); Harrington v. Ormond, 900 F.3d 246, 249 (6th
Cir. 2018); In re Davenport, 147 F.3d 605, 610-11
(7th Cir. 1998); In re Dorsainvil, 119 F.3d 245,
251-52 (3d Cir. 1997); but see McCarthan v. Director of
Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th
Cir. 2017) (en banc) (rejecting prior savings-clause
jurisprudence); Prost v. Anderson, 636 F.3d 578, 589
(10th Cir. 2011). But the Court need not determine in this
case whether retroactive application of a new rule of
statutory law is a sufficient basis to justify invocation of
the savings clause, because neither Johnson nor
Dimaya established a rule of statutory law.
Dimaya declared the residual clause of 18 U.S.C.
§ 16(b) void for vagueness-that is, too arbitrary and
indistinct to comport with the constitution's guarantee
of due process. See Dimaya, 138 S.Ct. 1204, 1212-13.
In this respect (and in many others), Dimaya closely
and expressly tracks the rule established by
Johnson, which declared the residual clause of 18
U.S.C. § 924(e)(2)(B)(ii) invalid and was itself
determined to be a new rule of constitutional law, not
statutory law, see Welch v. United States, 136 S.Ct.
1257 (2016); Russo v. United States, 902 F.3d 880,
881 (8th Cir. 2018) (“[T]he Court in Johnson
announced a new rule of constitutional law . . . .”).
Johnson and Dimaya declared not that the
relevant statutory provisions had been interpreted
incorrectly-e.g., that courts had read into § 924(e) or
§ 16(b) actions that were not actually prohibited by
those statutes-but that the due-process clause prohibited
reliance upon the vague residual clauses contained in those
statutes. This is a constitutional holding, not a
statutory holding. For that reason, countless challenges
under Johnson have been authorized by courts of
appeals pursuant to § 2255(h)(2), and the government has
conceded in other litigation that viable claims under
Dimaya may be authorized under § 2255(h)(2) as
well. See In re Gordon, No. 18-3449, 2018 WL 3954189
(6th Cir. Aug. 14, 2018) (per curiam); Jackson v.
Barnes, No. 18-CV-1392 (DSD/ECW), ECF No. 9 (D. Minn.
Aug. 3, 2018).
claim, too, is a constitutional claim. If Johnson
and Dimaya should (as Malone argues) be read as
invalidating aspects of § 924(c), it will be because the
language of § 924(c) is insufficiently concrete to
comport with constitutional due process protections. Because
Malone's claim is at bottom a constitutional claim,
§ 2255(h)(2) permits authorization of that claim,
assuming that Malone can also make a “prima facie
showing” that he is entitled to relief on the merits of
his claim. See 28 U.S.C. § 2244(b)(3)(C).
Section 2255 is therefore not inadequate or ineffective, and
Malone must proceed through that avenue.
this District is both the court of conviction and the court
of incarceration and thus is the correct venue for Malone to
proceed via § 2255. Malone's present habeas petition
cannot simply be converted into a motion under § 2255,
however, because that motion would be second or successive
and therefore require authorization by the Eighth Circuit.
Malone must request and receive permission from the appellate
court before seeking relief here under § 2255. This
Court notes that nothing in this Recommendation is intended
to preclude Malone from seeking authorization from the Eighth
Circuit pursuant to § 2255(h)(2) for his claim.
Malone has not adequately justified his invocation of the
savings clause, the Court lacks jurisdiction over his habeas
petition, which must be dismissed without prejudice.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
that this matter be DISMISSED ...