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Habeas relief denied where argument not raised

Virginia Lawyers Weekly//August 24, 2021

Habeas relief denied where argument not raised

Virginia Lawyers Weekly//August 24, 2021

Where the former corrections officer convicted for his role in the death of a detainee argued that the jury instructions were erroneous, but he did not raise that objection at trial, his motion for habeas relief was denied.


A federal grand jury indicted Patrick Marlowe, who supervised corrections officers working the second shift at the county jail in Wilson County, Tennessee, for depriving detainees and prisoners of their rights secured by the Constitution or laws of the United States in violation of 18 U.S.C. § 242 and conspiring to do so in violation of 18 U.S.C. § 241.

Counts Two and Three charged Marlowe in the death of detainee Walter Kuntz. Count Two encompassed the assault, while Count Three faulted Marlowe for depriving Kuntz of necessary medical care. On Count Two, the jury found Marlowe guilty and that bodily injury—but not death—resulted from the assault on Kuntz. On Count Three, the jury found Marlowe guilty and that both bodily injury and death resulted from withholding medical care.

In 2009, Marlowe moved to vacate, set aside or correct his conviction and sentence under 28 U.S.C. § 2255. The district court denied the motion and declined to issue a certificate of appealability, as did the Sixth Circuit. In July 2017, Marlowe filed the 28 U.S.C. § 2241 habeas petition underlying this appeal. Marlowe contends that the jury instructions in his case ran afoul of Burrage v. United States, 571 U.S. 204 (2014). The government moved to dismiss the petition for lack of jurisdiction, arguing that Marlowe was not entitled to invoke section 2241 because he had not shown, pursuant to the so-called “savings clause” of section 2255(e), that a section 2255 motion would be “inadequate or ineffective to test the legality of his detention.”

The district court granted the motion to dismiss. It recognized that, when evaluating claims under the savings clause, it must apply the procedural law of this circuit and the substantive law of the circuit where the petitioner was convicted. Looking to the law of the Sixth Circuit, the district court observed that the circuit has applied Burrage retroactively on collateral review.

The court also observed that the Sixth Circuit’s savings-clause jurisprudence requires a prisoner to prove he is “actually innocent,” meaning that applying the retroactive rule “make[s] it more likely than not that no reasonable juror would have convicted him.” The district court determined that Marlowe “should be required to show the actual innocence standard of the Sixth Circuit” and held that Marlowe failed to make that showing.


Section 2255(e)’s savings clause permits a prisoner to file a traditional section 2241 habeas petition if it “appears that the [section 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.” In this circuit, 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 [section] 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 [section] 2255 because the new rule is not one of constitutional law.”

Marlowe cannot satisfy his burden under the first step of the test. The law concerning 18 U.S.C. § 242’s causation standard could hardly be “settled” if the Sixth Circuit has never interpreted it. Marlowe could have raised his current objection to the causation jury instruction at trial. He has not shown that doing so “would have been futile” under binding Sixth Circuit precedent. He therefore has not satisfied the first requirement of the test for invoking the savings clause of section 2255(e).


Marlowe v. Warden FCI Hazelton, Case No. 20-6719, July 27, 2021. 4th Cir. (Rushing), from NDWVA at Wheeling (Bailey). Jeremy Brian Gordon for Appellant. Jason Lee for Appellee. VLW 021-2-264. 19 pp.

VLW 021-2-264

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