United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE.
Jimmy Lawrence Nance, an inmate currently incarcerated at the
United States Penitentiary located in Greenville, Illinois,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241. He asserts actual innocence with respect to the
conviction and sentence imposed in United States v.
Nance, No. 92-CR-00135-JPJ-1 (W.D. Va. 1993)
(“Criminal Case”). (Doc. 1, p. 5).
matter is now before the Court for review of the Petition
pursuant to Rule 4 of the Federal Rules Governing § 2254
Cases in United States District Courts, which provides that
upon preliminary consideration by the district judge,
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Rule 1(b) gives this Court the authority
to apply the rules to other habeas corpus cases.
1993, a jury found Nance guilty of first-degree murder of a
United States Postal employee engaged in the performance of
her official duties and he was sentenced to life
imprisonment. See 18 U.S.C. §§ 1111, 1114;
Criminal Case, Doc. 61. The Fourth Circuit Court of Appeals
affirmed his sentence and conviction. United States v.
Nance, 67 F.3d 298 (4th Cir. 1995) (unpublished),
cert. denied, 516 U.S. 1136 (1996). Since then,
Nance has raised numerous unsuccessful challenges to his
conviction and sentence pursuant to 28 U.S.C. § 2255 and
has repeatedly sought relief from the Fourth Circuit Court of
Appeals. See also Nance v. Thomas, No.
15-cv-05099-BHH, at Doc. 42, p. 2 (D.S.C. Dec. 8, 2016)
(dismissing § 2241 petition and discussing case
history). Nance has filed several other § 2241 petitions
in Texas and South Carolina,  and has used various names to
file his claims: “Jimmy Lawrence Nance, Jimmy L. Nance,
James Lawrence Nance, and Jim L. Nance.” Nance v.
Dove, No. 00-cv-03371-HMH, at Doc. 5, p. 3 (D.S.C. Nov.
petitions for writ of habeas corpus under 28 U.S.C. §
2241 may not be used to raise claims of legal error in
conviction or sentencing, but are instead limited to
challenges regarding the execution of a sentence. See
Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Aside from the direct appeal process, a § 2255
motion is ordinarily the “exclusive means for a federal
prisoner to attack his conviction.” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003). A prisoner is
generally limited to one challenge of his conviction
and sentence under § 2255 and may not file a
“second or successive” § 2255 motion unless
a panel of the appropriate court of appeals certifies that
such motion either 1) contains newly discovered evidence
“sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense, ” or 2) invokes “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h).
very limited circumstances, it is possible for a prisoner to
challenge his federal conviction or sentence under §
2241. 28 U.S.C. § 2255(e) contains a “savings
clause” under which a federal prisoner can file a
§ 2241 petition when the remedy under § 2255 is
“inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). See United
States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir.
2002). The Seventh Circuit construed the savings clause in
In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998):
“A procedure for postconviction relief can be fairly
termed inadequate when it is so configured as to deny a
convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as
having been imprisoned for a nonexistent offense.”
Davenport, a petitioner must meet three conditions
to trigger the savings clause. First, he must show that he
relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on
a decision that he could not have invoked in his first §
2255 motion and that case must apply retroactively.
Lastly, he must demonstrate that there has been a
“fundamental defect” in his conviction or
sentence that is grave enough to be deemed a miscarriage of
justice. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). See also Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012). In other words, something more than a
lack of success with a § 2255 motion must exist before
the savings clause is satisfied.” See Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
the case in his previous § 2241 petitions, Nance once
again asserts “actual innocence” but makes legal
arguments “rather than demonstrating any actual
innocence of the criminal offense.” Nance v.
Thomas, No. 15-cv-05099-BHH, at Doc. 7 p. 10. (D.S.C.
Apr. 11, 2016). Specifically, he points out that in
1992, the statute of conviction read, “Whoever is
guilty of murder in the first degree, shall suffer death
unless the jury qualifies its verdict by adding
thereto ‘without capital punishment', in
which event he shall be sentenced to imprisonment for
life” (18 U.S.C.A. § 1111 (1992) (emphasis
added)), that the prosecutor in his case did not seek the
death penalty, and that he was sentenced by the court to life
imprisonment. See Doc. 1, p. 27. He argues that his
sentence violates the constitution because the jury was not
fully informed on its discretion to impose the death penalty
pursuant to the 1992 statute, and that the jury was required
to make the determination on both “guilt and whether
the punishment of death should be imposed”.
Id. at pp. 9-11. He further argues that because his
attorneys failed to raise this issue at the trial and
appellate level, he was denied effective assistance of
counsel. Id. at p. 7.
has raised similar arguments in previous petitions and
motions filed with other courts. See Nance v. United
States, 14-cv-00353-JPJ-RSB, 2014 WL 12901969 (W.D. Va.
July 25, 2014); Nance v. Atkinson, No.
14-cv-00744-TLW, 2014 WL 12526329 (D.S.C. Aug. 18, 2014). In
particular, Nance raised almost identical claims in a §
2241 petition before the District Court of South Carolina and
that court found that he failed to demonstrate that there had
been a change in the substantive law such that the conduct
for which he was convicted is no longer deemed criminal.
Atkinson, at * 3. Also, in an order dismissing a
§ 2255 motion, the Western District of Virginia found
that the statutory language requiring the jury to qualify its
verdict was modified in 1994 “well before [Nance] filed
his §2255 motion in 1996” and so he had an
available remedy under his original § 2255. 2014 WL
12901969 at *2.
this Court finds that Nance satisfies none of the
requirements of the savings clause to challenge his
conviction pursuant to § 2241. He claims that he is now
able to challenge his sentence pursuant to § 2241
because of new case law articulated in United States v.
Wheeler, 734 Fed.Appx. 892 (4th Cir. 2018), cert.
denied 139 S.Ct. 1318 (2019), and Brown v.
Caraway, 719 F.3d 583 (7th Cir. 2013). But this argument
fails. Wheeler and Brown allow prisoners to
challenge a fundamental defect in their sentence under §
2241, but “Brown still requires the petitioner
to meet all three of the Davenport
requirements.” Ellerman v. Walton, No.
13-cv-063-CJP, 2014 WL 103831 at *3 (S.D. Ill. Jan 20, 2014).
Nance does not cite to any changes in the law regarding his
crime of conviction or the sentence that was imposed that
postdates his first § 2255 motion. Because a lack of
success and limitation on filing successive motions does not
render a § 2255 motion an inadequate remedy, § 2241
is not the proper vehicle for review of Nance's
conviction and sentence. Accordingly, his Petition will be
dismissed with prejudice.
Nance is WARNED that he may be subject to
sanctions for further frivolous or duplicative filings in
this District, consistent with Alexander v. United
States, 121 F.3d 312, 315 (7th Cir. 1997). In
Alexander, the Seventh Circuit imposed a monetary
sanction as well as an order that future filings by the
petitioner would be deemed denied on the thirtieth day unless
the Court entered an order to the contrary.
Alexander, 121 F.3d at 315-16. In imposing these
sanctions, the Seventh Circuit relied on the principle that
courts have “inherent powers to protect themselves from
vexatious litigation.” Id. at 316 (citing
Chambers v. NASCO, Inc., 501 U.S. 32 (1991)). The
Court notes that the United States Supreme Court has already
prohibited Nance from filing civil petitions unless the
docketing fee is paid because Nance “has repeatedly
abused this Court's process”. Criminal Case, Doc.
338. Nance should refrain from future vexatious, frivolous,
or duplicative filings, if he wishes to avoid these