United States District Court, M.D. Pennsylvania
M. Munley United States District Judge.
2006, Phillip Bradley Polk pled guilty to being a felon in
possession of a firearm and ammunition, in violation of 18
U.S.C. §§ 922(g)(1), 924(a). United States v.
Polk, 229 Fed.Appx. 776, 776 (10th Cir. 2007). The
sentencing court enhanced Polk's sentence under the Armed
Career Criminal Act (ACCA) and sentenced him to 262
months' imprisonment. Id. at 776-78. The United
States Court of Appeals for the Tenth Circuit determined that
Polk was properly sentenced under the ACCA and affirmed the
sentencing court's judgment. Id. at 779-81.
then filed his first 28 U.S.C. § 2255 motion, asserting
that his plea counsel was ineffective in failing to challenge
the Government's evidence at sentencing. United
States v. Polk, 4:05-cr-00039-TCK-1 (N.D. Okla., Docs.
122, 123). The district court concluded that counsel had not
been ineffective and denied Polk's motion. Id.
at Doc. 130.
2017, Polk filed a second § 2255 motion-which he later
amended- asserting that, in light of the United States
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), he no longer possessed
three predicate convictions sufficient to support his ACCA
enhancement. Id. at Docs. 133, 135. Polk
simultaneously filed a 28 U.S.C. §§ 2244, 2255(h)
petition with the Tenth Circuit seeking authorization to file
a second or successive § 2255 motion. Id. at
Doc. 138. The Tenth Circuit noted that Johnson
“pertains to the ACCA's residual clause only”
and determined that Polk was not sentenced under the residual
clause, but was instead sentenced under the enumerated
offense clause. Id. The Tenth Circuit therefore
concluded that Polk's petition did not rely on a new rule
of constitutional law and denied authorization to file a
second or successive § 2255 motion. Id. The
district court then dismissed Polk's second § 2255
motion as an unauthorized second or successive motion.
Id. at Doc. 140.
has now filed a 28 U.S.C. § 2241 petition with this
Court in which he argues that he no longer qualifies as an
armed career criminal and his sentence should therefore be
vacated. (Docs. 1, 2). Specifically, Polk asserts he was
sentenced as an armed career criminal based in part upon his
Oklahoma burglary conviction. (Doc. 2 at 2). Polk contends,
however, that the relevant Oklahoma burglary statute is not
divisible and is broader than generic burglary and, thus,
does not qualify as a violent felony under enumerated offense
clause-rendering his ACCA enhancement invalid. Id.
at 5-8. The Government has filed a response to the petition
asserting that Polk's challenge to his sentencing
enhancement may not be brought in a § 2241 petition.
challenges the validity of his criminal sentence, not its
execution.Although Polk brings this challenge in a
§ 2241 petition, “[m]otions pursuant to 28 U.S.C.
§ 2255 are the presumptive means by which federal
prisoners can challenge their convictions or
sentences.” Okereke v. United States, 307 F.3d
117, 120 (3d Cir. 2002). Thus, “a federal prisoner may
resort to § 2241 only if he can establish that
‘the remedy by motion [under § 2255] is inadequate
or ineffective to test the legality of his
detention.'” Bruce v. Warden Lewisburg
USP, 868 F.3d 170, 178 (3d Cir. 2017) (quoting 28 U.S.C.
United States Court of Appeals for the Third Circuit has
explained, “[a] § 2255 motion is inadequate or
ineffective only where the petitioner demonstrates that some
limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication
of his wrongful detention claim.” Cradle v. U.S. ex
rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). “It
is the inefficacy of the remedy, not the personal inability
to use it, that is determinative.” Id.
[The Third] Circuit permits access to § 2241 when two
conditions are satisfied: First, a prisoner must assert a
claim of actual innocence on the theory that he is being
detained for conduct that has subsequently been rendered
non-criminal by an intervening Supreme Court decision'
and our own precedent construing an intervening Supreme Court
decision-in other words, when there is a change in statutory
caselaw that applies retroactively in cases on collateral
review. And second, the prisoner must be otherwise barred
from challenging the legality of the conviction under §
2255. Stated differently, the prisoner has had no earlier
opportunity to challenge his conviction for a crime that an
intervening change in substantive law may negate. It matters
not whether the prisoner's claim was viable under circuit
precedent as it existed at the time of his direct appeal and
initial § 2255 motion. What matters is that the prisoner
has had no earlier opportunity to test the legality of his
detention since the intervening Supreme Court decision
Bruce, 868 F.3d at 180. The Savings Clause of §
2255 is jurisdictional; if a petitioner improperly challenges
the legality of his sentence under § 2241 when the
underlying claim does not fit within the Savings Clause, the
petition must be dismissed. See Id. at 183 (noting
jurisdictional nature of Savings Clause inquiry).
evaluated under this standard, it is clear that Polk's
claim does not fit within the Savings Clause, and this Court
therefore lacks jurisdiction to consider his § 2241
petition. First, Polk makes no claim that he is actually
innocent of his crime of conviction, but instead asserts that
he is entitled to a sentence reduction based on recent
developments in the interpretation of what constitutes a
violent felony. Second, Polk's § 2241 petition
does not rely on any intervening court decisions that would
cast doubt upon his factual-or even legal-guilt for his crime
of conviction or predicate offenses. Finally, there is no
plausible assertion that a § 2255 motion is inadequate
to test the legality of Polk's sentence; rather, he seems
to bring his challenge under § 2241 only because he was
denied authorization from the Tenth Circuit to file a second
§ 2255 motion. Consequently, this Court does not have
jurisdiction over Polk's § 2241 petition, and it
must be dismissed.