Case No. 19-cv-105 (JNE/LIB)
In a Report and Recommendation ("R&R") dated March 22, 2019, the Honorable Leo I. Brisbois, United States Magistrate Judge, recommended that the Court dismiss Petitioner Gregg's § 2241 petition for lack of subject matter jurisdiction. ECF No. 6. The R&R explained that a federal prisoner may attack his conviction pursuant to § 2241 when he has established that "a remedy is inadequate or ineffective under § 2255." Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004). Additionally, the R&R concluded that Gregg had failed to establish that § 2255 was an inadequate or ineffective remedy. See 28 U.S.C. § 2255(e). On April 3, 2019, Petitioner Gregg requested an extension to file objections to the R&R, which the Court granted. Petitioner Gregg filed objections on May 6, 2019. ECF No. 9. The Court conducted a de novo review of the record. See 28 U.S.C. § 636(b)(1); D. Minn. LR 72.2. Based on this review, the Court overrules Gregg's objections and adopts the R&R in its entirety.
Petitioner Gregg argues that his petition satisfies the "inadequate or ineffective" prong of the savings clause, and thus, he should be permitted to bring a claim under § 2241. Gregg relies on a Fourth Circuit case to argue that the savings clause applies when a petitioner's claim is based on a new rule of statutory interpretation that applies retroactively. United States v. Wheeler, 886 F.3d 415, 428 (4th Cir. 2018). Then, he argues that he has become aware of pending cases that have established a new rule of statutory law. Specifically, Gregg cites United States v. Davis, 903 F.3d 483 (5th Cir. 2018), which applied the Supreme Court's decision in Sessions v. Dimaya to conclude that § 924(c)'s residual clause is unconstitutionally vague. Finally, because the Supreme Court granted certiorari and heard argument in Davis, Gregg requests that his petition be "held in abeyance pending the decision in Davis, which certainly will have [a] significant impact on Gregg's § 2241 Petition." ECF No. 9 at 4.
Magistrate Judge Brisbois acknowledged in the R&R that "[a] minority of circuits" have established this rule. ECF No. 6 at 3 n.1.
Gregg also challenges his conviction under § 924(c)'s residual clause in light of the Supreme Court's ruling in Dimaya. ECF No. 1 at 7.
But, as Magistrate Judge Brisbois acknowledged, the Court need not determine "whether retroactive application of a new rule of statutory law is a sufficient basis to justify invocation of the savings clause, because . . . Gregg does not rely on the application of a new rule of statutory law." ECF No. 6 at 4. Davis involves a constitutional holding, not a statutory holding. Accordingly, "Gregg's claim is at its core a constitutional claim" and "§ 2255(h)(2) may permit authorization of that claim." Id. at 5. For these reasons, the Court agrees with Magistrate Judge Brisbois' conclusion that Gregg failed to establish that § 2255 is an inadequate or ineffective remedy and consequently, the Court lacks subject matter jurisdiction.
In his R&R, Magistrate Judge Brisbois similarly found that Dimaya did not establish a rule of statutory law. ECF No. 6 at 4-5. --------
In short, the Court overrules Gregg's objections and adopts the R&R. Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. The Court ADOPTS the Report and Recommendation [ECF No. 6] of United States Magistrate Judge Leo I. Brisbois.
2. Petitioner's § 2241 Petition [ECF No. 1] is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: June 11, 2019
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge