United States District Court, N.D. West Virginia
JAMES S. FALLER, II, Petitioner,
JENNIFER SAAD, Warden, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
22], OVERRULING PETITIONER'S OBJECTIONS [DKT. NO. 26],
AND DENYING AND DISMISSING § 2241 PETITION [DKT. NO.
M. KEELEY, UNITED STATES DISTRICT JUDGE.
2015, a jury in the Western District of Kentucky convicted
James S. Faller, II (“Faller”) of tax evasion,
attempting to obstruct the Internal Revenue Service (IRS) in
the collection of taxes, knowingly giving false information
to the IRS, and willful failure to file tax returns. The
district court sentenced Faller to 36 months of imprisonment,
and the United States Court of Appeals for the Sixth Circuit
affirmed the convictions on direct appeal. See United
States v. Faller, 675 Fed.Appx. 557 (6th Cir. 2017).
March 29, 2017, Faller filed a Petition for Habeas Corpus
pursuant to 28 U.S.C. § 2241, attacking the validity of
his convictions (Dkt. No. 1). Specifically, he alleges that
the Sixth Circuit “deni[ed] his right of direct appeal,
” by failing to review issues raised in his pro
se brief and by failing to “look at [his]
request” for new counsel. He also alleges that his
appellate counsel was ineffective (Dkt. No. 1 at 4-6).
Pursuant to 28 U.S.C. § 636 and the local rules, the
Court referred this matter to the magistrate judge for
initial screening and a report and recommendation.
March 28, 2018, the Honorable James E. Seibert, United States
Magistrate Judge, issued a Report and Recommendation
(“R&R”), which recommended that the Court
dismiss the petition for lack of jurisdiction because Faller
had not demonstrated that § 2255 is an inadequate or
ineffective remedy by which to attack the validity of his
convictions (Dkt. No. 22). Specifically, the R&R concluded
Faller had not established his entitlement to the application
of § 2255's savings clause pursuant to the test
articulated in In re Jones, 226 F.3d 328 (4th Cir.
2000). Id. at 7-8.
objects to the R&R's determination that, because the
petition does not fall within the scope of the savings
clause, it must be dismissed for lack of jurisdiction (Dkt.
No. 26). He specifically objects to the R&R's
reliance on In re Jones for this conclusion,
id. at 4-5, arguing that the requirements
established in In re Jones are not “the only
way to show that § 2255 is an inadequate or ineffective
remedy for his claims. He asserts that “structural
errors” in his case entitle him to proceed under §
2241. Id. at 5.
de novo review, the Court concludes that
Faller's objections lack merit. Where, as here, a
petitioner seeks to attack the imposition of his sentence
rather than its execution, he may only seek a writ of habeas
corpus pursuant to § 2241 by demonstrating that §
2225 is “inadequate or ineffective to test the legality
of . . . detention.” 28 U.S.C. § 2255(e) (the
“savings clause”); see also In re Jones,
226 F.3d at 332.
Fourth Circuit has explained that § 2255 is inadequate
or ineffective only where:
(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 gate-keeping provisions of § 2255
because the new rule is not one of constitutional law.
In re Jones, 226 F.3d at 333-34; see also United
States v. Wheeler, 886 F.3d 415, 427 (4th Cir. 2018)
(reciting the three-prong test articulated in Jones
and acknowledging that “[t]here is no doubt that
Jones is still good law in this circuit”).
Magistrate Judge Seibert correctly concluded, In re
Jones precludes any relief under § 2255's
savings clause. Even assuming Faller could satisfy the first
and third prongs of Jones, he has not established
that “the conduct of which [he] was convicted” is
no longer criminal, as required by the second prong.
Id.; see Dkt. No. 22 at 8.
to Faller's arguments, the Fourth Circuit has
consistently reiterated that In re Jones provides a
§ 2241 petitioner's only route to the § 2255
savings clause. See, e.g., Rice v. Rivera,
617 F.3d 802, 807 (4th Cir. 2010), where the Fourth Circuit
strictly applied In re Jones to block a § 2241
petitioner from challenging the fact of his conviction
through the savings clause of § 2255. Id.
Although the court ultimately remanded that case to the
district court with instructions to vacate the sentence, it
determined that § 2241 was the incorrect procedural
vehicle for the challenge because the petitioner did not ...