United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge
Tameika Raquel Clark pleaded guilty in the United States
District Court for the Southern District of Georgia to wire
fraud, aggravated identity theft, and possession of an
unauthorized access device and was sentenced to a total of
100 months' imprisonment. See United States v.
Clark, No. 6:13-CR-0013 (S.D. Ga.). In her plea
agreement, Ms. Clark “entirely waive[d] her right to a
direct appeal of her conviction and sentence, ” with
limited exceptions. Despite that waiver, Ms. Clark (through
her attorney) filed a notice of appeal after judgment was
entered. That appeal, however, was dismissed for want of
prosecution. Ms. Clark is now incarcerated at the Federal
Correctional Institution at Waseca, Minnesota.
October 2018, Ms. Clark filed a petition for a writ of habeas
corpus in this District. The basis upon which she sought
relief was at first unclear, but Ms. Clark later specified
that she was alleging that her attorney was constitutionally
defective for failing to file a notice of appeal.
See ECF No. 3 at 2. Ms. Clark stated that she
anticipated a ruling favorable to her claim in the Supreme
Court's then-pending case of Garza v. Idaho, 139
S.Ct. 738 (2019).
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 her 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 her
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).
is no reason to believe that § 2255 is “inadequate
or ineffective” for Ms. Clark to raise her claim
pursuant to Garza. Ms. Clark has never before sought
relief pursuant to § 2255, and thus a motion brought
under that provision would not be subject to the restrictions
on second-or-successive § 2255 motions. See 28
U.S.C. § 2255(h). Although Ms. Clark waived her right to
collaterally attack her conviction and sentence in her plea
agreement, that waiver does not necessarily preclude all
attacks brought under § 2255, see Vaca-Ortiz v.
United States, 320 F.Supp.2d 1362, 1366 (N.D.Ga. 2004)
(noting that “a defendant can never waive the right to
later argue that the very agreement containing the waiver was
procured under circumstances where he was receiving
ineffective assistance of counsel”), and Garza
at a minimum suggests that collateral-attack waivers, like
appeal waivers, cannot prevent a defendant from prosecuting a
claim that counsel was ineffective for having failed to file
a notice of appeal. To the extent that Ms. Clark in fact
relies upon a right “newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review, ” her claim would not be barred by
the relevant statute of limitations. 28 U.S.C. §
2255(f)(3). Simply put, nothing is now preventing Ms. Clark
from pressing a Garza claim pursuant to § 2255,
rather than in a habeas petition.
§ 2255 is not inadequate or ineffective for Ms. Clark to
raise her claim, this Court lacks jurisdiction over the
petition. See DeSimone, 805 F.2d at 323.
“Whenever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer
such action or appeal to any other such court . . . in which
the action or appeal could have been brought . . . .”
28 U.S.C. § 1631. Ms. Clark presents her claim as a
straightforward application of Garza: her attorney
refused to file a notice of appeal (she alleges), despite her
instructions to do so, and therefore failed to fulfill his
constitutional duties. This is not strictly accurate; Ms.
Clark's attorney did file a notice of appeal in
her case, notwithstanding the waiver in the plea agreement.
That appeal, though, was dismissed for want of prosecution
after Ms. Clark, or her attorney, failed to fulfill certain
ministerial tasks. See United States v. Clark, No.
14-13451 (11th Cir. Nov. 10, 2014). A claim that Ms.
Clark's attorney was therefore ineffective in the
constitutional sense is not frivolous following
Garza, and thus this Court concludes that it would
be in the interests of justice to transfer this petition to
the Southern District of Georgia for further consideration as
a motion under § 2255.
Clark is warned, though, that should this matter be
transferred as recommended, any subsequent § 2255 motion
she might file will be subject to the restrictions placed on
“second or successive” motions. See 28
U.S.C. § 2255(h). Upon transfer, Ms. Clark should
therefore strongly consider filing an amended motion that
contains any and all claims under § 2255 that she
believes might be available to her. Should Ms. Clark
not wish to proceed under § 2255, she may
voluntarily dismiss this petition during the objection period
to this Recommendation or otherwise indicate that she opposes
transfer of this motion for further consideration under
§ 2255. See Castro v. United States, 540 U.S.
375, 383 (2003).
on the foregoing, and on al of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED that this matter
be TRANSFERRED to the United States District Court for the
Southern District of Georgia.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply
with the word or line limits set forth in Local Rule 72.2(c).