Loiseau v. United States of American, No. 3:2015cv00417 - Document 7 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/15/2016. Copy mailed to Petitioner.(tjoh, )
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Loiseau v. United States of American Doc. 7 IN THE UNITED STATES DISTRICT COURT CLERK, U.8. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND. VA Richmond Division MICHAEL ANGELO LOISEAU, Petitioner, Criminal Action No. V. 3:15CV417 UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION On March Angelo Michael (E.D. 6, Loiseau. Va.) months (ECF of relief. 1998, No. the United 34). imprisonment Court The and entered States Court a term of supervised Loiseau, sentenced five-year By Order entered on July 14, Loiseau's v. judgment release and 3:97CR344 Loiseau term 2010, against the of 292 supervised Court imposed to a revoked forty-six month term of imprisonment to be served consecutive to the state sentence County imposed of {E.D. Va.) a writ Petition") Loiseau Spotsylvania. (ECF No. On July 9, for upon of by United the Circuit States v. Loiseau, for the 3:97CR344 66). 2015, the Court received from Loiseau a petition habeas corpus under 28 U.S.C. challenging the revocation of his and imposition of a By entered § Order on September 2241 (''§ 2241 supervised release forty-six month sentence. Memorandum Court 18, {§ 2241 2015, Pet. the 7.) Court directed Loiseau to show cause why the present action should not be dismissed without prejudice to Loiseau's pursuit of a 28 Dockets.Justia.com U.S.C. § 2255 motion suspended sentence. forth below, the to challenge Loiseau action the revocation responded. is For dismissed the without of his reasons set prejudice to Loiseau's pursuit of a 28 U.S.C. § 2255 motion. I. Motions Under 28 U.S.C. § 2255 Compared To Petitions Under 28 U.S.C. A § pursuant 2255 motion primary means federal of to 28 collateral 451 (5th Cir. F.2d attack'" conviction and sentence, with the sentencing court. 1111, 2000) 1113 on See Pack v. Cir. U.S.C. § the "'provides Yusuff, Warden, 1990)). A 218 Fed. federal Pet. § 2255 F.3d 164, 632 n.l of the *3 n.5 166 (4th 911 may not ''is inadequate or 28 U.S.C. Appeals Cir. 1997) (citing In re Vial, 115 F.3d Bradshaw v. (10th Cir. 1996); Hanahan v. Luther, (7th Cir. for 1982)). the Nevertheless, Fourth Circuit Story, 86 693 F.2d 629, the United States Court has emphasized that "the ^ "This 'inadequate and ineffective' exception is known as 'savings clause' to [the] limitations imposed by § 2255." Wilson V. 333 Ctr., "For example, attacks on the execution of a sentence are properly raised in a § 2241 petition." 1194 filed F.3d 448, inmate ineffective to test the legality of his detention." 1192, be a § 2241 unless he or she demonstrates that the remedy afforded by 28 U.S.C. § 2255(e).^ the imposition of and such motion must (quoting Cox v. (5th proceed under 28 U.S.C. 2241 Wilson, (E.D. Va. Apr. (4th Cir. No. 12, 2000)). I:llcv645 2012) (TSE/TCB) , 2012 (quoting In re Jones, WL 1245671, at 226 F.3d 328, remedy afforded ineffective by merely § 2255 because is an not rendered individual has inadequate been or unable to obtain relief under that provision or because an individual is procedurally barred from filing a § 2255 motion." Id. (citations omitted) The Fourth Circuit has stressed that an inmate may proceed under § 2241 to challenge his conviction ''in only very limited circumstances." Cir. 2008) omitted). as United States v. (citation Poole, omitted) 531 F.3d 263, (internal The "controlling test," id., 269 quotation (4th marks in the Fourth Circuit is follows: [Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of 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 gatekeeping provisions of § 2255 because the new rule In re Jones, added). The remedy for i s not one of constitutional 226 F.3d 328, Fourth Circuit the 333-34 (4th formulated law. Cir. this 2000) test "fundamental defect presented by a (emphasis to provide a situation in ^ Loiseau cannot avoid the bar on filing successive 28 U.S.C. § 2255 motions by suggesting he is filing a petition for a writ of habeas corpus under 28 U.S.C. § 2241 or 28 U.S.C. § 2254. "Call i t a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audit querela . . . , the name makes no difference. It is substance that controls." Cir. 2004) Cir. Melton v. United States, 1996)) . (citing Thurman v. Gramley, 3 359 F.3d 855, 97 F.3d 185, 857 (7th 186-87 (7th which an individual criminal but, is incarcerated through no fault of his has no source of redress." II. In conduct [or her] Id. at 333 n.3 that own, is not [he or she] (emphasis added). Analysis Of Loiseau's 28 U.S.C. § 2241 Petition support appropriate of Notes Proceedings. his contention for means supervised release, Committee for challenging Loiseau directs to Those Rule 1, notes challenge of decisions that § the 2241 revocation the Court Rules provide of the his to the Advisory Governing in provides Section 2255 part: "The pertinent such as the revocation of probation or parole are not appropriately dealt with under 28 U.S.C. § 2255, which is a continuation of the original criminal action. remedies, such situations." as habeas However, the corpus, are United States available Court of Other in such Appeals for the Fourth Circuit concluded with respect to this Advisory Note that a "we are unpersuaded that the § 2255 inappropriate for probation revocations." No. 88-7584, Moreover, 1988 WL 105445, this at *2 Milnes v. {4th Cir. Court's decision to revoke remedy Sept. Loiseau's is Samples, 22, 1988). supervised release and to impose a new 46-month prison term, was reviewable by means of a § 2255 motion. App'x 207, 207 (4th Cir. See Palacio v. Stansberry, 227 F. 2007); United States v. 190 F. App'x. 479, 481 (7th Cir. 2006) ineffective assistance of Schoeneweis, (concluding that claim of counsel during revocation proceedings could be raised in a Loiseau fails ineffective supervised to to demonstrate challenge release imprisonment, § 2255 post-conviction petition). and the that § 2255 revocation imposition of a new is of Because inadequate or his of term 46-month the § 2241 Petition will be dismissed. term of The Court will deny a certificate of appealability. The Clerk is directed to send a copy of the Memorandum Opinion to Loiseau. rte/ /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date:
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