United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE
matter comes before the undersigned United States Magistrate
Judge pursuant to a general referral made in accordance with
the provisions of 28 U.S.C. § 636 and Local Rule 72.1,
as well as, upon Petitioner Marcus Rand's Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
[Docket No. 1].
he pled guilty to multiple drug offenses, Petitioner was
sentence to a term of imprisonment of 151 months.
See, United States v. Rand, No.
1:11-cr-00288-1 (W.D. Mich. 2009). Since his conviction in
2009, Petitioner has pursued a direct appeal, a Section 2255
habeas corpus motion, and permission to file a successive
Section 2255 motion. See, United States v.
Rand, No. 12-1447, Order (6th Cir. 2013); In re:
Marcus Rand, No. 16-cv-652, Order (W.D. Mich. June 2,
2016); Rand v. United States, No. 19-1344, Order
(6th Cir. May 17, 2019).
time he filed the present action, Petitioner was incarcerated
at the Federal Correctional Institution in Sandstone,
Minnesota. Presently before the Court is Rand's first
Section 2241 Petition. (Petition [Docket No. 1]). In the
Petition, Rand contends that he is entitled to relief because
he believes that his sentence exceeds the maximum sentence
permitted for a class C felony under 18 U.S.C. §
3581(b)(3). (Id. at 1).
Court, however, lacks jurisdiction over the present Petition,
so it is recommended that the Petition be dismissed without
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 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
evident, 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).
§2241 petition, such as the present Petition, is not the
appropriate procedural vehicle for Rand because he has not
attempted to present his new claim about his sentence via a
second or successive §2255 petition.
previously observed, Plaintiff has already filed section 2255
motions, so he would need to receive authorization to file a
second or successive §2255 motion. Rand recently
attempted to seek permission to file a second or successive
petition from the Sixth Circuit Court of Appeals; however,
his request was dismissed for failure to prosecute because he
did not respond to a directive from the Sixth Circuit Court
of Appeals that he correct a procedural error with his
request. See, In re: Marcus Rand, No.
19-1344, Order (6th Cir. May 17, 2019) (dismissing matter for
lack of prosecution).
present case, Rand offers no explanation of why he believes
he could not receive leave to file a second or successive
Section 2255 motion. Based on a review of the Petition, the
Court finds there is no existing legal precedent which
Plaintiff can identify that specifically characterizes his
prospective claim as one that cannot succeed via § 2255
has not clearly established that Section 2255 would preclude
him from second or successive relief, nor has he demonstrated
that the savings clause would apply. Section 2255 is
therefore not inadequate or ineffective, and Rand must
proceed through that avenue. Rand has not adequately
justified his invocation of the savings clause. The Court
therefore lacks jurisdiction over his habeas Petition, which
must be dismissed without prejudice.
based on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
Petitioner Marcus Rand's Petitioner for Writ of Habeas
Corpus, [Docket No. 1], be DENIED without
matter be DISMISSED without prejudice for