George v. Clarke, No. 7:2014cv00279 - Document 2 (W.D. Va. 2014)
Court Description: OPINION. Signed by Judge James P. Jones on 6/24/2014. (tvt)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION ) ) ) ) ) ) ) ) ) ELISTON F. GEORGE, Petitioner, v. HAROLD W. CLARKE, Respondent. Case No. 7:14CV00279 OPINION By: James P. Jones United States District Judge Eliston F. George, Pro Se Petitioner. The petitioner, an inmate proceeding pro se, brings this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. The petitioner asserts that, based on falsified evidence, he was wrongly convicted in 1978 in the District Court of the Virgin Islands, a local or territorial court, now named Superior Court, on charges of first-degree murder and possession of a deadly weapon and sentenced to life in prison.1 After review of the record, I must summarily dismiss the defendant s petition without prejudice.2 1 The petition indicates that the petitioner is currently incarcerated under this sentence at Keen Mountain Correctional Center in Oakwood, Virginia, within the jurisdiction of this court. 2 See Rules 1(b) & 4, Rules Governing Section 2254 Cases (authorizing dismissal of habeas petition where it plainly appears from face of petition that petitioner is not entitled to habeas relief). A district court may not entertain a § 2241 petition attempting to invalidate a sentence or conviction unless a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255 in the sentencing court is inadequate or ineffective to test the legality of [an inmate s] detention. Swain v. Pressley, 430 U.S. 372, 381 (1977) (internal quotation marks and citation omitted). A procedural impediment to § 2255 relief, such as the statute of limitations or the rule against successive petitions, does not render § 2255 review inadequate or ineffective. See In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997). The United States Court of Appeals for the Fourth Circuit has found that § 2255 is inadequate and ineffective when the inmate satisfies a three-part standard by showing that: (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 is not one of constitutional law. In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). George s petition does not specify any recent change of substantive law making it no longer criminal conduct to use a deadly weapon to murder someone, and I am not aware of any such precedent or statutory amendment. Thus, George fails to meet a critical element of the In re Jones standard as required to show that 2 § 2255 is inadequate or ineffective to test the legality of his conviction,3 and his challenge to his conviction cannot be addressed under § 2241 accordingly. III Because George s claim is not appropriately raised under § 2241, I will summarily dismiss his petition. A separate Final Order will be entered herewith. DATED: June 24, 2014 /s/ James P. Jones United States District Judge 3 In fact, records available online indicate that George has previously filed numerous habeas corpus petitions and appeals in the courts of the Virgin Islands, as well as prior § 2255 motions. See, e.g., George v. Wilson, 59 V.I. 984, 2013 WL 5819098, *12 (V.I. 2013) (detailing petitioner s several attempts at post-conviction relief, including prior § 2255 proceedings). 3
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