Marlowe v. Warden, FCI Hazelton, No. 20-6719 (4th Cir. 2021)
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Marlowe supervised the jail where Kuntz was taken after leaving the scene of a minor accident with a high blood-alcohol level. Kuntz caused a disturbance, Marlowe beat Kuntz. Other officers slammed his head into the wall repeatedly. Officers observed Kuntz lying unconscious in his own vomit and tried to rouse him by pouring ice water over him. Six hours later, an ambulance was called. The EMTs believed they were responding to alcohol poisoning, so Kuntz was not airlifted to a trauma center. Kuntz had irreversible brain damage and died when he was removed from a ventilator. Doctors testified that such injuries are generally treatable if medical attention is sought in the first hours. Convicted under 18 U.S.C. 242, Marlowe was sentenced to life imprisonment.
In 2009, Marlowe sought relief under 28 U.S.C. 2255, claiming ineffective representation. The Sixth Circuit affirmed the denial of relief In 2017, Marlowe filed a 28 U.S.C. 2241 habeas petition, citing the Supreme Court’s 2014 “Burrage” decision, interpreting a statute imposing a mandatory minimum sentence for drug offenses where death or serious bodily injury results as requiring a showing of but-for causation. The jury in Marlow's case was not asked to decide whether Kuntz would have lived but for Marlowe’s conduct.
The Fourth Circuit affirmed the dismissal of the petition. Section 2241 is not available unless a 28 U.S.C. 2255 motion would be “inadequate or ineffective,” meaning that when Marlowe was convicted, the settled law of the Supreme Court or the circuit in which he was convicted established the legality of his conviction. The law concerning 18 U.S.C. 242’s causation standard could hardly be “settled” if the Sixth Circuit never interpreted it.
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