United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. Trauger United States District Judge.
defendant, Robert Kerry Pickle, is a federal inmate sentenced
by this court to a term of incarceration which he is
currently serving in California. He has filed two pro
se motions in letter form, under a single cover page.
(Doc. No. 304.) In the first motion (id. at 2), the
defendant invokes 28 U.S.C. § 2241 and argues that, in
the wake of Mathis v. United States, 136 S.Ct. 2243
(2016), his 2012 sentence was unconstitutionally enhanced
based upon non-violent predicate offenses. In his second
motion (Doc. No. 304 at 3), the defendant seeks a correction
and reduction of his sentence in light of the U.S. Supreme
Court's decision in Sessions v. Dimaya, 138
S.Ct. 1204 (2018), which he claims rendered his sentence
invalid “due to the unconstitutional nature of the
residual clause” of “924cc, ” which the
court construes as referring to 18 U.S.C. § 924(c)(3).
In both motions, the defendant requests relief in the form of
a new sentencing hearing. (Doc. No. 304 at 2, 3.)
defendant's motions are designated for filing in this
criminal case, although his cover page reverses the style of
the case. (Id. at 1 (“Robert Pickle v. United
States of America”).) He has already pursued a motion
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, and been denied relief. See Pickle v.
U.S., No. 3:16-cv-01435 (M.D. Tenn.). He did not appeal
the denial of his § 2255 motion.
defendant's motion under § 2241 is not properly
filed in this district, let alone in this criminal case. If
the defendant wishes to pursue a habeas corpus remedy under
§ 2241, he must do so by filing a proper application for
such relief in the Eastern District of California,
where he is incarcerated. See 28 U.S.C. § 2243
(“The writ [of habeas corpus] . . . shall be directed
to the person having custody of the person detained.”);
accord Hill v. Masters, 836 F.3d 591, 593 n. 1 (6th
Cir. 2016) (“Because Hill incorrectly filed his first
§ 2241 habeas corpus petition in the District of South
Carolina after he had been transferred to the penitentiary in
Inez, Kentucky, his petition was dismissed for lack of
subject-matter jurisdiction.”). This court is without
jurisdiction to entertain the motion under § 2241.
defendant's challenge to the constitutionality of his
sentence under Dimaya also faces a jurisdictional
problem in this court. Although he uses language associated
with motions under 18 U.S.C. § 3582(c) in seeking
“to reduce and correct” his sentence (Doc. No.
304 at 3), the defendant does not ask for modification of his
sentence as contemplated in that section,  but seeks a new
sentencing hearing based on the alleged unconstitutionality
of a provision of the statute establishing the penalties for
his crimes, 18 U.S.C. § 924(c)(3). Such a challenge to
the validity of the defendant's sentence must proceed
under § 2255, unless a § 2255 motion “is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). While the
defendant has already been denied relief under § 2255,
this prior denial does not render the statute inadequate or
ineffective for purposes of his current claim. Truss v.
Davis, 115 Fed.Appx. 772, 775 (6th Cir. 2004). Courts
have recognized that “a petitioner may present a
Dimaya claim through a second-or-successive motion
under § 2255[.]” Casarez v. Barnes, No.
18-CV-2255, 2018 WL 6516043, at *2 (D. Minn. Nov. 6, 2018).
See also In re Gordon, No. 18-3449, 2018 WL 3954189
(6th Cir. Aug. 14, 2018) (entertaining second or successive
§ 2255 motion based on Dimaya). The court
therefore construes the defendant's motion to reduce and
correct his sentence (Doc. No. 304 at 3) as a second or
successive § 2255 motion.
“[b]efore a second or successive [§ 2255 motion]
is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§§ 2244(b)(3)(A), 2255(h). As pertinent here, such
authorization will hinge upon whether the motion asserts
“a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.” § 2255(h)(2). There is no
indication that the defendant has obtained the necessary
authorization from the Sixth Circuit Court of Appeals to file
his motion in this court. The court cannot proceed in the
absence of such authorization. In this circuit, if a second
or successive habeas petition or motion to vacate is filed in
the district court without prior authorization by the Sixth
Circuit Court of Appeals, the appropriate procedure is for
the district court to transfer the file pursuant to 28 U.S.C.
§ 1631 to the appellate court, which will construe the
§ 2255 motion as a request under § 2244(b)(3)(A)
for authorization to file the motion. See In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997).
the defendant's motion for relief under 28 U.S.C. §
2241 (Doc. No. 304 at 2) is DENIED WITHOUT
PREJUDICE to his ability to file a proper §
2241 petition in the district court for the district where he
Clerk of Court is DIRECTED to
TRANSFER the motion to reduce and correct
sentence (Doc. No. 304 at 3) to the Sixth Circuit Court of
Appeals, to be considered as a motion for an order
authorizing this court to consider a second or successive
motion to vacate, set aside, or correct the defendant's
sentence. The Clerk must also forward a copy of this order to
the appellate court.