United States District Court, M.D. Pennsylvania
DERRICK L. HOLLOMAN, Petitioner
WARDEN R.A. PERDUE, Respondent
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.
Derrick L. Holloman, an inmate confined in the Schuylkill
Federal Correctional Institution, Minersville, Pennsylvania,
filed this petition for writ of habeas corpus pursuant to 28
U.S.C. §2241. (Doc. 1). He challenges a conviction and
sentence imposed by the United States District Court for the
Middle District of North Carolina. Id. Specifically,
he requests “to be re-sentenced as a career offender or
to have [his] prison term vacated on the grounds that a
consolidated charge was separated and used to sentence [him]
as an armed career criminal and according to North Carolina
law the federal court is in complete violation for separating
these charges.” Id. He believes that
“even though [his] now conviction is valid, [his]
sentence however is not.” Id. For the reasons
set forth below, the Court will dismiss the petition for writ
of habeas corpus for lack of jurisdiction.
January 30, 2009, Holloman was indicted in the United States
District Court for the Middle District of North Carolina on
various violence and firearms charges. United States v.
Holloman, No. 1:09-CR-0050-01 (M.D. N.C. ). On May 6,
2009, the district court accepted Holloman's plea of
guilty to one count of interference with commerce by violence
in violation of 18 §1951(a) and one count of felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1), 924(e). Id. As part of the plea
agreement, Holloman was informed of the sentencing range for
the charges against him. Id. Holloman acknowledged
that he would be sentenced pursuant to the United States
Sentencing Guidelines, and that the guidelines were advisory.
December 23, 2009, Holloman was sentenced to 228 months as to
Count 1 and 228 months as to Count 3 to run concurrently with
the sentence imposed as to Count 1. Id.
December 30, 2009, Holloman filed an appeal to the United
States Court of Appeals for the Fourth Circuit. Id.
On October 15, 2010, the Fourth Circuit Court of Appeals
affirmed the District Court. Id.
December 9, 2015, Holloman filed a motion to vacate his
conviction and sentence pursuant to 28 U.S.C. §2255.
Id. As alleged in the instant petition, Holloman
claimed that his sentence was improperly increased due to the
residual clause of the Armed Career Criminal Act
(“ACCA”) in violation of the Supreme Court's
holding in Johnson v. United States, 135 S.Ct. 2551
(2015). United States v. Holloman, No.
1:09-CR-0050-01 (M.D. N.C. ).
opposing Holloman's § 2255 motion, the Government
explained that Holloman had three prior convictions for a
“violent felony” that were not subject to the
“residual clause” in §924(e) so that his
sentence was not affected by Johnson. Id.,
Additionally, the Government argued that the factual basis in
support of Holloman's guilty plea clearly stated he
committed a robbery while using a sawed off shotgun so that
the four level sentence enhancement was warranted.
Id. By Order dated January 27, 2017, the sentencing
court denied the §2255 motion, reasoning that
Holloway's previous convictions did, in fact, render him
an Armed Career Criminal. Id.
January 18, 2018, Holloman filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. §2241, in
which he requests “to be resentenced as a career
offender or to have [his] prison term vacated on the grounds
that a consolidated charge was separated and used to sentence
[him] as an armed career offender and according to North
Carolina law the federal court is in complete violation for
separating these charges.” Id. Thus, he
concludes that “so even though [his] now conviction is
valid...[his] sentence however is not.” Id.
(See Doc. 1, petition).
ACCA imposes a 15-year mandatory minimum sentence on a person
convicted of being a felon in possession of a firearm if that
person has three previous convictions for violent felonies or
serious drug offenses. 18 U.S.C. §924(e)(1). In what is
known as the “residual clause, ” the ACCA defines
the term “violent felony” to “include any
felony that ‘involves conduct that presents a serious
potential risk of physical injury to another.' ”
Johnson v. United States, 135 S.Ct. 2551, 2555-56
(2015) (quoting 18 U.S.C. §924(e)(2)(B)). In
Johnson, the Supreme Court of the United States held
that the residual clause of the ACCA is unconstitutionally
vague, and that imposing an increased sentence under that
clause violates due process. Id. at 2563. Here,
Holloman appears to contend that because his prior
convictions was classified as violent felonies under the
residual clause of the ACCA, his underlying criminal sentence
is unconstitutional and must, therefore, be vacated, set
aside, and corrected. A federal prisoner like Holloman,
however, is generally required to use 28 U.S.C. §2255 to
collaterally attack his conviction or sentence on
constitutional grounds. Okereke v. United States,
307 F.3d 117, 120 (3d Cir. 2002). He “can seek relief
under §2241 only if the remedy provided by §2255 is
inadequate or ineffective to test the legality of his
detention.” Manna v. Schultz, 454 Fed.Appx.
31, 33 (3d Cir. 2010).
motion under §2255 is inadequate or ineffective only if
“some limitation of scope or procedure would prevent a
[§]2255 proceeding from affording the prisoner a full
hearing and adjudication of his claim of wrongful
detention.”Application of Galante, 437 F.2d
1164, 1165-66 (3d Cir. 1971). “Section 2255 is not
inadequate or ineffective merely because the sentencing court
does not grant relief, the one-year statute of limitations
has expired, or the petitioner is unable to meet the
stringent gatekeeping requirements of the amended
§2255.” Cradle v. United States, 290 F.3d
536, 539 (3d Cir. 2002). “It is the inefficacy of the
remedy, not the personal inability to utilize it, that is
determinative.” Id. at 538.
petitioner has the burden of proving that the remedy afforded
by §2255 is inadequate or ineffective. Brown v.
Mendez, 167 F.Supp. 2d 723, 726 (M.D. Pa.
2001). And, when a petitioner improperly challenges a
conviction or sentence under §2241, the petition must be
dismissed for lack of jurisdiction. Gardner v. Warden
Lewisburg USP, 845 F.3d 99, 104 (3d Cir. 2017)
(affirming the District Court's order denying
Gardner's §2241 habeas petition for lack of
In re Dorsainvil,119 F.3d 245 (3d Cir. 1997), the
United States Court of Appeals for the Third Circuit
addressed the question of when a prisoner may bring a
§2241 habeas petition after being denied leave to file a
second or successive §2255 motion. The Third Circuit
held that a federal prisoner barred from filing a second or
successive §2255 motion can resort to a §2241
habeas petition if the prisoner “had no earlier
opportunity to challenge his conviction for a crime that an
intervening change in substantive law” negated. Id.
at 251. “[T]he “safety valve” provided
under §2255” and as outlined in
Dorsainvil “is extremely narrow and has been
held to apply only in unusual situations, such as those in
which a prisoner has had no prior opportunity to challenge
his conviction for a crime later deemed to be non-criminal by
an intervening change in law.” Brown v. United
States, 413 Fed.Appx. 514, 516 (3d Cir. 2011); Bruce
v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d
Cir. 2017) (stating that it permits access to
§2241 “when there is a change in statutory caselaw
that applies retroactively in cases on collateral
review” and the prisoner is ‘otherwise barred
from challenging the legality of the conviction under
§2255.' ” (quoting United States v.
Tyler,732 F.3d 241, 246 (3d Cir. ...