United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DISMISSING
WITHOUT PREJUDICE § 2241 PETITION AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
petitioner, Mischa Walker (“Walker”), filed this
pro sepetition under 28 U.S.C. 2241 attacking the
validity of his conviction and sentence. The magistrate judge
entered a report recommending that Walker's petition be
summarily dismissed for lack of subject matter jurisdiction.
Walker then filed timely objections to the report and
recommendation. For the following reasons, the magistrate
judge's report and recommendation is adopted and
affirmed, Walker's § 2241 petition is dismissed
without prejudice, and Walker's objections are overruled.
plead guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g) before the
United States District Court for the District of Maryland. In
the plea agreement, Walker stipulated to a statement of
facts, providing that he fired a stolen, sawed-off shotgun
outside his residence, pointed the firearm at several
neighbors, then went inside. Police arrived on the scene and
found a spent shotgun shell outside Walker's front door.
Walker refused to exit the residence, and the police forcibly
removed him. The police then conducted a protective sweep and
found a sawed-off shotgun in plain view that was later
determined to have been stolen. At Walker's change of
plea hearing, the court reviewed this statement of facts with
Walker, and Walker affirmed that they were true. The court
accepted the plea agreement and sentenced Walker to 120
months of imprisonment.
appealed his conviction and sentence to the United States
Court of Appeals for the Fourth Circuit, and it was affirmed.
Walker then filed a motion under 28 U.S.C. § 2255
challenging the validity of his conviction and sentence,
alleging he was provided ineffective assistance of counsel in
violation of the Sixth Amendment. His motion was denied and
he did not appeal. Walker has now filed a motion under §
2241 asking this Court to vacate his conviction and sentence
on the ground that he is actually innocent of his offense.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because Walker filed objections to the report and
recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which objections were made. As to those findings to which
objections were not filed, those findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A).
Judge Michael John Aloi concluded that § 2241 is an
improper vehicle for Walker's claims because he is
challenging the validity of his conviction and sentence and
that Walker failed to show that § 2255 was inadequate or
ineffective to test the legality of his conviction and
sentence. Specifically, the magistrate judge concluded that
Walker's conviction was legal at the time of his guilty
plea and that Walker cannot satisfy § 2255's
gatekeeping provisions because he does not allege an
intervening change in constitutional law. However, the
magistrate judge concluded that Walker fails to established
an intervening change in substantive law that would negate
the criminality of his conduct. Walker objects to this
conclusion and it will be reviewed de novo.
prisoner may file a motion under § 2255 to collaterally
attack the legality of his conviction or sentence. 28 U.S.C.
§ 2255(a); Davis v. United States, 417 U.S.
333, 343 (1974). But generally, a prisoner may file a
petition under § 2241 to challenge only the manner in
which a sentence is executed. 28 U.S.C. § 2241(c). A
prisoner may use § 2241 to collaterally attack the
legality of his conviction or sentence only if the remedy
under § 2255 is “inadequate or ineffective.”
In re Jones, 226 F.3d 328, 332 (4th Cir. 2000);
see also 28 U.S.C. § 2255(e).
2255 is not inadequate merely because the prisoner has been
unable to obtain relief under § 2255. In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Nor is
§ 2255 rendered inadequate because of a limitation bar,
the prohibition against successive petitions, or a procedural
bar due to failure to raise the issue on direct appeal.
Id. Rather, § 2255 is inadequate and
ineffective to test the legality of a conviction when:
(1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality of the
conviction; (2) subsequent to the prisoner's direct
appeal and first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal; and (3) the prisoner
cannot satisfy the gatekeeping provisions of § 2255
because the new rule is not one of constitutional law.
Jones, 226 F.3d at 333-34.
objections, Walker argues that Henderson v. UnitedStates, 135 S.Ct. 1780 (2015), constitutes an
intervening change in substantive law that makes him actually
innocent of his offense. Walker argues that
Henderson changed the elements for proving
constructive possession under § 922(g) such that the
government must establish that Walker specifically intended
to exercise control over the firearm. Walker argues that he
was not in actual possession of the ...