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Bruce v. Thomas

United States District Court, M.D. Pennsylvania

October 15, 2014

CHARLES GRAY BRUCE, Petitioner,
v.
J.E. THOMAS, Warden, Respondent.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Petitioner Charles Gray Bruce brings the instant petition for habeas corpus pursuant to 28 U.S.C. §2241. He asks for relief from his sentence, or alternatively an evidentiary hearing, on the grounds that the government produced insufficient evidence to convict him on two counts of his indictment. Judge Blewitt has filed a thorough Report and Recommendation ("R&R") in the matter, recommending that the petition be dismissed. (Doc. 28). The court concurs with Judge Blewitt's report and will adopt it in its entirety.

I. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue , 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel , 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz , 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc. , 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson , 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.

II. DISCUSSION

On August 8, 1996, Petitioner was found guilty by a federal jury in the U.S. District Court for the Western District of Tennessee on eight counts, including Counts Six and Seven: murder to prevent communication to a law enforcement official, 18 U.S.C. §1512(a)(1)(C). Petitioner was sentenced by the U.S. District Court for the Western District of Tennessee to life imprisonment plus ten consecutive years on November 4, 1996. (Doc. 4, pp. 8-10).

On September 12, 2013, the petitioner filed his pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2241. (Doc. 1). Petitioner claims that a §2255 motion is no longer adequate to raise his habeas claims because the U.S. Supreme Court's ruling in Fowler v. United States , 131 S.Ct. 2045 (2011) has rendered the conduct for which he was convicted under Counts Six and Seven to be non-criminal.

On October 2, 2013, Judge Blewitt issued a Report & Recommendation ("R&R") recommending that petitioner's habeas motion be dismissed for lack of jurisdiction because §2255 was, indeed, the appropriate remedy rather than §2241. Bruce v. Thomas, 2013 WL 6548431 (M.D. Pa. Oct. 2, 2013). The very next day, however, the Third Circuit decided U.S. v. Tyler , 732 F.3d 241 (3d. Cir. 2013), which is directly relevant to the case at hand.

Petitioner then filed an Objection to the R&R and the district court remanded the case to Judge Blewitt to consider the implications of the Tyler case. Judge Blewitt issued a Show Case Order on December 17, 2013 (Doc. 11) and Respondent filed his Response on March 17, 2014 (Doc. 20). Petitioner filed a Traverse on March 28, 2014. (Doc. 21). Respondent filed a Reply to Petitioner's Traverse on May 6, 2014, based upon a typographical error in Respondent's original response to the habeas petition. (Doc. 26). Petitioner filed a Supplement to his Traverse on May 19, 2014. (Doc. 27).

Petitioner first argues that the government has failed to prove an element of his conviction under Counts Six and Seven; namely, that there was likely to be any communication between the two victims and federal law enforcement. He claims that there is insufficient evidence to establish a reasonable likelihood of a communication occurring between the victims and a federal officer, and, therefore, the federal nexus requirement of §1512(a)(1)(C) was not satisfied.

The court agrees with Judge Blewitt that Petitioner has misconstrued his burden. Since Petitioner is claiming actual innocence, he must show that "he is actually innocent of conduct that has subsequently been rendered non-criminal by the Supreme Court's interpretation of [§1512(a)(1)(C) in Fowler. ] Fowler states: "the Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer." Fowler , 131 S.Ct. at 2052. Put another way, petitioner has the burden to show that a reasonable juror would have concluded that there was "a reasonable likelihood that the person whom the defendant believes may communicate with law enforcement would in fact make a relevant communication with a federal law enforcement officer." Schlup v. Delo , 513 U.S. 298, 327-28 (1995); United States v. Fowler , 131 S.Ct. 2045, 2052 (2011).

Petitioner's second argument centers around the specific language in Tyler : "[t]o establish this reasonable likelihood, there must be evidence - not merely argument' of the witness's cooperation with law enforcement." Petitioner repeatedly argues that before the commission of the crimes, the victims had not communicated with federal law enforcement officers and that there was not yet a federal investigation. Essentially, he claims that he cannot be convicted of preventing communication to federal authorities because the victims were murdered before any communications took place.

The court also agrees with Judge Blewitt that this argument is entirely without merit, as there does not need to be a federal investigation in progress in order to be convicted of a witness-tampering offense. The Tyler court addressed this directly: "[W]e emphasize that the government need not prove that a federal investigation was in progress at the time the defendant committed [a] witness-tampering offense." Tyler , 732 F.3d at 252 (citing Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012).

Moreover, there is extensive evidence in the record from which a reasonable juror could find that communication with a federal officer was not remote, outlandish or simply hypothetical. Petitioner simply disregards evidence unfavorable to his position, in particular, evidence indicating that "numerous witnesses cooperated after federal authorities became involved." (Doc. 28, p. 19).

Finally, Petitioner's argument for an evidentiary hearing is based upon the claim that there are disputed facts with respect to the Respondent's Response to his habeas petition. In support Petitioner cites to a typographical error in Respondent's original response to the habeas petition, which has since been corrected. Nothing about this so called factual dispute requires a hearing or in any manner taints the entire factual background as claimed by the Petitioner.

V. CONCLUSION

For the reasons articulated above, as well as those thoroughly discussed in Judge Blewitt's report and recommendation, the court ADOPTS the report and recommendation in its entirety.

Attorneys and Law Firms

Charles Gray Bruce, Lewisburg, PA, pro se.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge.

I. Procedural Background.

*1 On September 12, 2013, Petitioner Charles Gray Bruce, an inmate at USP-Lewisburg, Lewisburg, Pennsylvania, filed, pro se, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner also filed a 7-page typed Memorandum in support of his habeas petition (Doc. 4) with an attached Exhibit, namely, a copy of the Sixth Circuit Court of Appeals' August 2, 2013 Order denying Bruce's § 2244(b) motion to file a second or successive motion under 28 U.S.C. § 2255 based on the Supreme Court's decision in Fowler v. United States, ___ U.S. ___, 131 S.Ct. 2045 (2011). See In re Bruce, No. 13-5222 (6th Cir. Aug. 2, 2013). (Doc. 4, Att.). Petitioner paid the filing fee. (Doc. 3).

Named as sole Respondent in this habeas petition is J.E.

Thomas, the Warden at USPLewisburg.[1] The habeas petition has not yet been served on Respondent for a response.

In his habeas petition, Petitioner basically claims that based on the U.S. Supreme Court's recent decision in Fowler v. United States, ___ U.S. ___, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), a § 2255 motion is not adequate or effective to raise his habeas claims since the Fowler decision renders a portion of the conduct for which he is serving his present federal life-sentence non-criminal, i.e., his convictions under Counts Six and Seven of his Indictment, under 18 U.S.C. § 1512(a)(1)(C). Petitioner also claims that in light of Fowler, he is actually innocent of his convictions under Counts Six and Seven of his Indictment and actually innocent of his concurrent sentences of life imprisonment on both Counts. As such, Petitioner contends that his life-sentence is rendered invalid by the decision in Fowler v. United States .

We now give preliminary consideration to Petitioner Bruce's § 2241 habeas petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254 (applicable to § 2241 petitions under Rule 1(b)). See Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D.Pa.1979); Romero v. Holt, 2006 WL 3437360 (M.D.Pa.); Winfield v. Martinez, 2008 WL 4541945 (M.D.Pa.); Francis v. U.S., 2009 WL 1010522 (M.D.Pa.); Rivera v. Scism, Civil No. 10-1773, M.D. Pa.[2]

We find that this Court lacks jurisdiction over Petitioner Bruce's § 2241 habeas petition relying on Fowler.

II. Factual Background.[3]

On August 8, 1996, Petitioner Bruce was found guilty by a federal jury on eight Counts of an Indictment in the U.S. District Court for the Western District of Tennessee. The relevant Counts are Six and Seven, murder to prevent communication to a law enforcement official, 18 U.S.C. § 1512(a)(1)(C). Petitioner states that Counts Six and Seven charged him with killing Danny Vine and Della Thornton, respectively, "with intent to prevent the communication to a law enforcement officer information relating to the commission of a federal offense, in violation of Title 18 U.S.C. § 1512(a)(1) (C)." (Doc. 4, p. 2). Specifically, in its August 2, 2013 Order, the Sixth Circuit Court of Appeals stated that "the evidence [in Bruce's criminal case] showed that Bruce and several co-Defendants conspired to rob a mussel-shell business, bound and shot the owners, burned down the building, stole a truckload of shells, selling them for several thousand dollars." (Doc. 4, Att.). The U.S. District Court sentenced Petitioner to life imprisonment plus ten consecutive years. Petitioner then appealed his convictions and sentence to the Sixth Circuit Court of Appeals. The Sixth Circuit Court of Appeals affirmed Petitioner's convictions and sentence on March 31, 1998. See U.S. v. Bruce, 1998 WL 165144 (6th Cir. Mar.31, 1998).

*2 Petitioner then filed a writ of certiorari with the U.S. Supreme Court and it was denied. See Bruce v. United States, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).

In 2007, Petitioner Bruce filed a § 2244(b) motion to file a second or successive motion under 28 U.S.C. § 2255 with the Sixth Circuit Court of Appeals and it was denied on October 4, 2007, since Bruce did not yet file a first § 2255 motion with the sentencing court. See In re Bruce, No. 07-5385 (6th Cir. Oct. 4, 2007). Petitioner then filed a § 2255 motion with the U.S. District Court for the Western District of Tennessee and the Court dismissed the motion as untimely in 2008. The Sixth Circuit Court of Appeals denied Petitioner a certificate of appealability regarding the District Court's dismissal of Petitioner's § 2255 motion as untimely. See Bruce v. United States, No. 11-5251 (6th Cir. Sept. 20, 2011).

On February 28, 2012, Petitioner filed a motion under Fed.R.Civ.P. 60(b) with the U.S. District Court for the Western District of Tennessee and the District Court construed this motion as a second or successive motion under 28 U.S.C. § 2255, and transferred the motion to the Sixth Circuit Court of Appeals. On December 21, 2012, the Sixth Circuit Court of Appeals denied the motion and found that "the evidence Bruce cited was not new and did not tend to demonstrate his innocence." See In re Bruce, No. 12-5204 (6th Cir. Dec. 21, 2012). (Doc. 4, Att.). In his February 28, 2012 motion, Petitioner did not rely on the Supreme Court's decision in Fowler v. United States, ___ U.S. ___, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), even though the Fowler case was decided in May 2011. (See Doc. 4, Att.).

On February 2, 2013, Petitioner filed another § 2244(b) motion to file a second or successive motion under 28 U.S.C. § 2255 with the Sixth Circuit Court of Appeals and this time he based his motion on the Supreme Court's decision in Fowler v. United States, ___ U.S. ___, 131 S.Ct. 2045, 2011, 179 L.Ed.2d 1099).

On August 2, 2013, the Sixth Circuit Court of Appeals issued an Order denying Petitioner Bruce's second § 2244(b) motion to file a second or successive motion under 28 U.S.C. § 2255 based on Fowler v. United States . See In re Bruce, No. 13-5222 (6th Cir. Aug. 2, 2013). (Doc. 4, Att.). The Sixth Circuit Court of Appeals stated:

"In Fowler, the Supreme Court settled an issue of statutory application in murder cases under the federal witness tampering statute. 18 U.S.C. § 1512(a) (1)(C); Fowler, 131 S.Ct. at 2049-50. The Supreme Court held that murder committed with the intent to prevent communication to a federal law enforcement officer under 18 U.S.C. § 1512(a)(1)(C) requires a showing of a "reasonable likelihood" that the victim would have communicated with a federal officer about the event had he survived. Fowler, 131 S.Ct. at 2053.

The Sixth Circuit Court of Appeals also stated that the Fowler Court "cited no constitutional reason for its holding, nor did it mention any constitutional provision" and "it is clear the Fowler created a rule of statutory interpretation and not one of constitutional law." (Doc. 4, Att., p. 3).

*3 Significantly, the Sixth Circuit Court of Appeals stated in its August 2, 2013 Order that "the Supreme Court [has not] rendered the Fowler rule retroactive on collateral review." The Sixth Circuit Court of Appeals also stated that no subsequent Supreme Court holdings have found that the Fowler case applies retroactively to cases on collateral review. Further, the Sixth Circuit Court of Appeals stated since the Fowler case was issued on May 26, 2011, before Bruce filed his latest § 2255 motion on February 28, 2012, " Fowler was not previously unavailable' to Bruce, as he could have raised the argument in his previous [§ 2255] motion." (Doc. 4, Att., p. 3).

As mentioned, on September 12, 2013, Petitioner Bruce then filed his present § 2241 habeas petition seeking to challenge his life-sentence by claiming that his convictions under 18 U.S.C. § 1512(a)(1)(C) are invalid based on the Fowler decision. (Doc. 1).

III. Claims of Habeas Petition.

Petitioner is essentially contending that his life-sentence is now invalid in light of the recent Supreme Court holding in Fowler v. United States . Petitioner claims that the Fowler case establishes a new substantive rule and that it applies restoratively to cases on collateral review, such as his. Petitioner claims:

In light of the legal interpretation in Fowler [ ], [18 U.S.C. § 1512(a) (1)(C)] [punishes] only persons with whom killing of a witness to prevent communication to federal law enforcement... thus, in the absence of the killing at least one of the relevant communication would have been made to a federal office[r]. [Petitioner's] Indictment did not include an intent to prevent communication with federal law enforcement officers.

(Doc. 1, p. 4).

Thus, Petitioner contends that he is being punished under 18 U.S.C. § 1512(a)(1)(C) for conduct which is not a crime. It appears that Petitioner is claiming, based on Fowler, that a necessary element of his convictions under 18 U.S.C. § 1512(a)(1) (C), i.e., whether a communication would have been to a federal law enforcement officer in the absence of the killing, was not charged in Counts Six and Seven of his Indictment and not proven. Therefore, Petitioner claims that he was convicted of conduct in Counts Six and Seven that was not criminal.

We will recommend that the present habeas petition be dismissed for lack of jurisdiction since we find that a § 2255 motion is Petitioner Bruce's remedy with respect to his claims challenging his life-sentence. As mentioned, Petitioner is presently serving his federal life-sentence, imposed in November 1996, at USP-Lewisburg.

IV. Discussion.

This Court can only exercise jurisdiction over Petitioner's § 2241 habeas petition if he can show that Fowler decriminalized his conduct upon which his convictions under 18 U.S.C. § 1512(a)(1) (C) were based.

Initially, we must address the Supreme Court's holding in Fowler. In U.S. v. Tyler , Criminal No. 96-CR-106, M.D. Pa. (J. Caldwell), 2012 WL 951479, *10-*11 (M.D.Pa. March 20, 2012), the Court stated:

*4 In Fowler v. United States, ___ U.S. ___, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), the Supreme Court interpreted the law-enforcement-officercommunication prong of section 1512(a)(1) (C), the offense of tampering with a witness by murder. The Court held that when a defendant has the general intent to prevent the victim from communicating with a law enforcement officers in general (and not federal officers in particular), to satisfy this element of the offense:

the Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.
The Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. For, as we have said, one can act with an intent to prevent an event from occurring without it being true beyond a reasonable doubt (or even more likely than not) that the event would otherwise occur.... But the Government must show that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.

Id. at ___, 131 S.Ct. at 2052. In doing so, the Court rejected the standard employed by the Eleventh Circuit below, which had ruled that this prong of the statute was satisfied if the government showed "a possible or potential communication to federal authorities.'" Id. at ___, 131 S.Ct. at 2048 (quoting the case below, 603 F.3d 883, 888) (emphasis in the Eleventh Circuit opinion).

Thus, as the Court stated in Dhinsa v. Hufford, 2012 WL 3579652, *3 (M.D.Pa. Aug.17, 2012), "pursuant to Fowler, for the government to secure a conviction under 18 U.S.C. § 1512(a)(1) (C), which makes it a crime to kill another person, with intent to... prevent the communication by any person to a law enforcement officer... of the Untied States' or information relating to the... possible commission of a Federal offense, ' it must show that there was a reasonable likelihood that the relevant communication would have been made to a federal officer."

Petitioner Bruce states that in his criminal case "Where is nothing in the record showing that any federal officer or agency of the United States Government ever[ ] made any inquiry about [his case]." Petitioner states that the investigation in his case was solely with local and state officers for two years until a dying state officer contacted federal prosecutors since he could not obtain a Tennessee State indictment against Petitioner. Thus, Petitioner seems to claim that in his criminal case a reasonable likelihood that the victims (Danny Vine and Della Thornton) would have communicated with federal officers about the commission of a federal offense was not proven and that this is now required by the Fowler case. (Doc. 4, pp. 4-5). That is to say, the Fowler Court held that, "to prove a violation of 18 U.S.C. § 1512(a)(1) (C) specifically, the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer' but for the victim's death." Haskell v. Daniels, 510 Fed.Appx. 742, 745 n. 4 (10th Cir. Feb.11, 2013) (citing Fowler, 131 S.Ct. at 2048) (emphasis original).

*5 Presently, we have not found any court which has ruled that Fowler applies retroactively to cases on collateral review. As mentioned, the Sixth Circuit Court of Appeals stated in its recent August 2, 2013 Order issued in Petitioner's underlying criminal case, that "the Supreme Court [has not] rendered the Fowler rule retroactive on collateral review." See In re Bruce, No. 13-5222 (6th Cir. Aug. 2, 2013). (Doc. 4, Att.). Also, as stated, the Sixth Circuit Court of Appeals found that Petitioner Bruce did in fact have a prior opportunity to raise his claim under Fowler when he filed his § 2255 motion on February 28, 2012. (Doc. 4, Att., p. 3).

In fact, some courts have already considered § 2241 habeas petitions based on Fowler, finding that the Petitioner was still considered as challenging the validity of his sentence and convction under 18 U.S.C. § 1512(a)(1)(C). See Harris v. U.S., 2013 WL 2455983 (N.D.W.Va. June 6, 2013). Haskell v. Daniels, 510 Fed.Appx. 742, 745 n. 4 (10th Cir. Feb.11, 2013) (Court found that cite to new Supreme Court decision in Fowler, even though Fowler was not yet decided when Defendant filed his § 2255 motion, did not render a § 2255 motion "inadequate or ineffective.")[4] See also Cooper v. Copenhaver, 2013 WL 2257098 (E.D.Cal. May 22, 2013) (court dismissed § 2241 habeas petition for lack of jurisdiction which challenged the validity of Petitioner's sentence under 18 U.S.C. § 1512(a)(1)(C) based on Fowler since a § 2255 motion was the appropriate remedy).

We find that Petitioner Bruce's present § 2241 habeas petition should be dismissed for lack of jurisdiction. Specifically, we find that § 2255 is an adequate and effective remedy for Petitioner Bruce to raise his instant habeas claims. Petitioner contends that § 2255 is inadequate or unavailable in light of the fact that his motions to file a second or successive § 2255 motions were denied and since the limitations period to file a § 2255 motion has expired. Simply because Petitioner's prior § 2255 motions were denied by the United States District Court for the Western of Tennessee and the Sixth Circuit Court of Appeals denied Petitioner's motions to file a second or successive § 2255 motion, does not render a § 2255 motion as inadequate or ineffective for Petitioner to raise his present claims. See Moore-Bey v. Ebbert; Rivera v. Scism, Civil No. 10-1773, M.D. Pa.; Blum v. Holt, 2010 WL 2926596 (M.D.Pa.5-7-10) adopted by 2010 WL 2926593 (M.D.Pa.7-26-10). Additionally, as mentioned, even though Petitioner's latest motion to file a second or successive § 2255 motion was based on the Folwer case and his motion was recently denied by the Sixth Circuit on August 2, 2013, since the Court found that Petitioner did not meet the stringent gatekeeping requirements of § 2255, his remedy still lies with a § 2255 motion. In re Dorsainvil, 119 F.3d 245, 251 (3d Cri.1997).

Suffice to say that, based on the above cited cases, we find Petitioner Bruce's present habeas claims must be raised via a 2255 motion. See Harris, supra; Cooper, supra; see also DiFilippo v. Sniezek, Civil No. 10-0406, M.D. Pa., aff'd. 2010 WL 3965893 (3d Cir.10-12-10) (Court found that § 2255 Motion was remedy for Petitioner who claimed that he should not have been sentenced as a career offender and that his guideline range should not have been increased, since the Supreme Court recently found that escape was not always a crime of violence for purposes of sentencing a Defendant as a career offender).

*6 In Sperling v. Hogsten, Appeal No. 07-3032, (3d Cir.10-19-07) (Non-Precedential), slip op. pp. 3-4, the Third Circuit stated:

A federal prisoner can seek relief under section 2241 only if the remedy provided by section 2255 is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). A section 2255 motion is not "inadequate or ineffective" merely because the sentencing court has denied relief, Cradle, 290 F.3d at 539, or because the petitioner cannot meet the gatekeeping requirements of section 2255, Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). As noted above, Sperling has already filed three unsuccessful motions pursuant to section 2255 in the sentencing court, and at least two applications to the Second Circuit for permission to file another, all of which essentially raised the same claims he raises here. However, the fact that Sperling cannot prevail under section 2255 does not render it "inadequate or ineffective" to protect him. See Cradle, 290 F.3d. at 539. Therefore, the District Court properly dismissed Sperling's petition pursuant to 28 U.S.C. § 2241.

In Green v. Apker, 2005 WL 1138478, * 4 (M.D.Pa.), this Court stated that there is "a high bar for what a court will consider a serious constitutional issue sufficient to allow a Petitioner to bring a § 2241 petition to challenge a conviction or sentence." This Court stated that the request for relief under § 2241 must be based on newly discovered evidence or an intervening change in substantive law that would negate the criminal nature of Petitioner's conduct leading to his federal conviction. Id. We do not find that Petitioner Bruce's claims in the present case are based on newly discovered evidence or an intervening change in substantive law that would negate the criminal nature of Petitioner's conduct leading to his federal conviction under 18 U.S.C. § 1512 (a)(1)(C).

Moreover, as stated above, we have not found any case in which a court held that Fowler was made retroactive to cases on collateral review. We also again find that the cases of Harris and Cooper make it clear that § 2255 is the remedy for Petitioner Bruce to raise his instant claims. Petitioner Bruce must seek his relief via that vehicle even though he is again required to seek permission from the appeals court to file a second or successive § 2255 motion. Okereke, supra . Further, Petitioner is essentially challenging the validity and constitutionality of his life-sentence. The exception created in Dorsainvil does not apply in this case and Petitioner cannot seek relief under § 2241. See Okereke, 307 F.3d at 120-21.

Thus, we will recommend that the District Court summarily dismiss Petitioner Bruce's § 224 habeas petition under Rule 4 since we find that the Court lack jurisdiction over it. We find that Petitioner's present habeas claims are clearly an attack on the legality of the life-sentence imposed on him by the United States District Court for the Western District of Tennessee. Thus, Petitioner cannot "evade the gatekeeping requirements of § 2255 by seeking relief under § 2241." Bush v. Elbert, 299 Fed.Appx. at 149.

*7 Based upon the above case law, we shall recommend that Petitioner Bruce's § 2241 habeas petition (Doc. 1) be dismissed for lack of jurisdiction without directing service of it on Respondent.

V. Recommendation.

Based upon the foregoing, it is respectfully recommended that Petitioner Bruce's Petition for Writ of Habeas Corpus (Doc. 1) be dismissed for lack of jurisdiction.


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