North Carolina Lawyers Weekly
After petitioner was sentenced under the Armed Career Criminal Act and after Johnson v. United States, 576 U.S. 591 (2015), declared the residual clause of the ACCA unconstitutional, petitioner was allowed a second collateral attack under 28 U.S.C. § 2255 to review his sentence, and a district court determined that his prior convictions remained valid predicates under the ACCA. Although the Sixth Circuit declined to review the district court decision based on a procedural ground that the Sixth Circuit later admitted was erroneous, petitioner is not entitled to further Johnson review of his sentence.
We affirm the district court’s rejection of petitioner’s habeas corpus petition.
A federal prisoner may pursue habeas relief by way of a petition under 28 U.S.C. § 2241— like petitioner attempts to do here—only if it “appears that the [§ 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). However, the § 2255 remedy is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.
Here, we know that § 2255 is up to the task of testing the legality of petitioner’s detention because he has already pursued his argument in a § 2255 motion and received a judgment on it.
To allow a habeas petition under § 2241 for a constitutional claim that does not fit within the narrow confines of § 2255(h)(2) would read § 2255(h)(2)’s gatekeeping provisions right out of the statute. Section 2255 is not rendered inadequate or ineffective merely because an individual is procedurally barred from filing a § 2255 motion.
The district court addressed the merits of petitioner’s Johnson challenge. Petitioner appears to insist that one round of merits review is inadequate, but that contention cannot be squared with the fact that Congress did not create an appeal as of right from a district court’s ruling on a § 2255 motion. Under petitioner’s approach, a constitutional claim adjudicated on the merits in district court would become “unavailable” to a prisoner any time a court denies a certificate of appealability. That is plainly not the scheme Congress created.
Section 2255 is not inadequate or ineffective merely because an individual has been unable to obtain relief under the provision. The very fact that petitioner was able to pursue his Johnson claim in a second § 2255 motion demonstrates that § 2255 is adequate and effective to test his detention; the correctness of the Sixth Circuit’s ruling does not affect the adequacy of the remedial vehicle. To hold otherwise would convert § 2241 into an appeal from all § 2255 denials.
Affirmed.
Dissent
(King, J.) Petitioner’s ability to satisfy the gatekeeping provisions of § 2255(h)(2) at some point in the past does not necessarily translate into his ability to satisfy those provisions at the present time. Petitioner has shown that he is unable to meet the gatekeeping provisions for a second or successive motion, which is clearly why he now seeks to proceed under § 2241.
A prisoner who cannot meet the gatekeeping provisions of § 2255(h)(2) through no fault of his own may be able to use § 2255(e) to open the door to § 2241.
Petitioner has never had an unobstructed procedural shot at pursuing his second § 2255 motion. That is because, after granting him a certificate of appealability to resolve his Johnson claim, the Sixth Circuit dismissed petitioner’s appeal by enforcing a collateral-attack waiver contained in his plea agreement. As a result, the court of appeals neither reached nor resolved the merits of petitioner’s Johnson claim.
The court’s ruling that enforced the waiver and dismissed petitioner’s appeal, as the Sixth Circuit commendably acknowledged, was actually predicated on an erroneous interpretation of its own precedent. The Sixth Circuit’s admittedly erroneous enforcement of the collateral-attack waiver has thus “obstructed” petitioner’s ability to pursue his second § 2255 motion. And that obstruction — imposed through no fault of petitioner’s — may well have rendered the § 2255 remedy inadequate or ineffective.
I would remand to the district court for consideration of whether petitioner’s sentence now presents an error sufficiently grave to be deemed a fundamental defect.
Slusser v. Vereen (Lawyers Weekly No. 001-076-22, 19 pp.) (Allison Jones Rushing, J.) (Robert King, J., dissenting) No. 19-7482. Appealed from USDC at Rock Hill, S.C. (Donald Coggins, J.) Reedy Charles Swanson for appellant; Leesa Washington and Peter McCoy for appellee. 4th Cir.
