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Nolan v. Wilson

United States District Court, N.D. Texas, Fort Worth Division

May 31, 2018

VERNON JEFFREY NOLAN, [1] Petitioner,
v.
ERIC D. WILSON, Warden, FMC-Fort Worth, Respondent.

          OPINION AND ORDER

          REED O' CONNOR UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (ECF No.1) by Petitioner Vernon Jeffrey Nolan (“Nolan”), a federal prisoner confined at FMC-Fort Worth in Fort Worth, Texas, the Response of Warden Eric D. Wilson (ECF No. 6) and Appendix (ECF No. 7), and Nolan's Reply (ECF No. 8). After considering the § 2241 petition and the relief sought by Petitioner, the record, related briefing, and applicable law, the Court concludes that the § 2241 petition should be and is hereby DISMISSED for lack of jurisdiction.

         I. BACKGROUND

         Nolan was convicted in the United States District Court for the Western District of Oklahoma, in Cause Number 5:08-cr-00064-HE-1, of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and sentenced to 180 months imprisonment. Am. J., No. 5:08-cr-064-HE (1), ECF No.81;[2] App. ECF No. 7-1. Nolan filed a direct appeal from his conviction and sentence, but the Tenth Circuit affirmed the conviction and sentence on August 17, 2009. United States v. Nolan, 342 Fed.Appx. 368 (10th Cir. 2009). Nolan then filed a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2), but the district court denied that motion by order dated September 25, 2009. United States v. Nolan, No.5:08-cv-064-HE, ECF Nos. 83, 87. Nolan filed a notice of appeal from that ruling, but the Tenth Circuit affirmed the district court's order denying the motion to reduce sentence. United States v. Nolan, 359 Fed.Appx. 941 (10th Cir. 2010). Nolan also filed a motion for relief under 28 U.S.C. § 2255, but the district court summarily denied the § 2255 motion and denied Nolan a certificate of appealability. United States v. Nolan, No.5:08-cr-064-HE, ECF Nos. 108 and 110-11; Nolan v. United States, No. 5:10-cv-1326-HE, ECF Nos. 1-3. Nolan's appeal to the Tenth Circuit from the denial of his initial § 2255 motion was dismissed on March 30, 2011. United States v. Nolan, 417 Fed.Appx. 826 (10th Cir. 2011).

         Nolan then filed on June 17, 2016, without seeking authorization, a successive motion under 28 U.S.C. § 2255 in the district court. United States v. Nolan, No. 5:08-cr-064-HE, ECF No. 124; Nolan v. United States, No. 5:16-cv-674-HE, ECF No. 1. While that successive § 2255 motion was pending, Nolan sought authorization from the Tenth Circuit to pursue relief under § 2255. United States v. Nolan, No. 5:08-cr-064-HE, ECF No. 138. The Tenth Circuit denied Nolan's motion/request for authorization to file a successive § 2255 motion in an order issued on November 2, 2016. In re: Vernon Jeffrey Nolan, No.16-6300 (10th Cir. Nov. 2, 2016). In accordance with the order of the court of appeals, the district court then, on November 16, 2016, issued an order dismissing the successive § 2255 motion Nolan had filed prior to seeking authorization. United States v. Nolan, No. 5:08-cr-064-HE, ECF No. 140; Nolan v. United States, No.5:16-cv-674-HE, ECF No. 2. Soon after Nolan's convicting court dismissed the unauthorized § 2255 motion, he filed the instant petition under 28 U.S.C. § 2241 in this Court. Pet., ECF No. 1.

         II. ANALYSIS

         In this petition under § 2241, Nolan asserts that the sentencing court incorrectly imposed a sentence enhancement under the Armed Career Criminal Act (“ACCA”). Pet. 1-2, ECF No.1. While § 2255 relief must be sought in the jurisdiction that sentenced the defendant, § 2241 relief must be sought in the jurisdiction where the defendant is incarcerated. Under the ACCA, a defendant who violates § 922(g)(1), and who has three prior convictions for a “violent felony” or a “serious drug offense, ” must be sentenced to a minimum of fifteen years imprisonment. 18 U.S.C. § 924(e)(1). Before the guilty plea, the Government filed in the sentencing court a notice to establish prior convictions under 21 U.S.C. § 851, that included information that Nolan was, prior to his guilty plea, convicted four times for possession with intent to distribute marijuana under Okla. Stat. Tit. 63, § 2-401. Am. Info. Establish Prior Convict., No.5:08-cr-064-HE, ECF No. 25. The court thus determined that Nolan qualified as an armed career criminal and imposed the statutory minimum sentence of fifteen years. United States v. Nolan, 342 Fed.Appx. at 370. In this § 2241 proceeding, Nolan contends that he is “actually innocent of enhancement of the use of his state prior controlled substance offense[s].” Pet. 1, ECF No. 1.

         A motion under § 2255 is the primary means of collaterally attacking a federal conviction or sentence. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.2001) (per curiam) (citing Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.2000) (per curiam)). “While § 2241 is more typically used to challenge the execution of a prisoner's sentence, a federal prisoner may bring a petition under § 2241 to challenge the legality of his conviction or sentence if he can satisfy the mandates of the ‘savings clause' of § 2255.” Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003) (citing Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001)). The statutory “savings clause” provides,

An application for a writ of habeas corpus in [sic] behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e). Under the “savings clause”, the petitioner has the burden of showing that the § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” Jeffers, 253 F.3d at 830.

         Nolan fails to show that the § 2255 remedy is either inadequate or ineffective to the test the legality of his detention. Nolan cannot rely on § 2241 merely because he already sought relief under § 2255, and was denied permission to file a successive § 2255 motion from the Tenth Circuit, such that he is now limited in seeking further relief under § 2255. Cf. Pack v. Yusuff, 218 F.3d 448, 453 (5th Cir. 2000) (citing Tolliver, 211 F.3d at 878) (holding that neither a prior, unsuccessful § 2255 motion, the limitations bar, nor successiveness renders the § 2255 remedy inadequate or ineffective).

         Moreover, the Fifth Circuit has determined that, before a petitioner may pursue relief through § 2241 under the language of the § 2255 savings clause, he must show that:

(1) his claim is based on a retroactively applicable Supreme Court decision; (2) the Supreme Court decision establishes that he was “actually innocent” of the charges against him because the decision decriminalized the conduct for which he was convicted; and (3) his claim would have been foreclosed by existing circuit precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition.

Christopher, 342 F.3d at 382 (citing Reyes-Requena, 243 F.3d at 904 and Jeffers, 253 ...


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