Michael Gordon v. United States
19-3673
| 3rd Cir. | Jun 17, 2021Background
- In 1998 Michael Lee Gordon was convicted in the S.D. Ohio of seven counts under 18 U.S.C. § 924(c) and seven Hobbs Act robbery counts, and sentenced to 137 years and 6 months.
- Gordon lost on direct appeal and his first § 2255 motion; he filed multiple second-or-successive applications in the Sixth Circuit.
- In December 2018 Gordon filed a § 2241 petition in the M.D. Pennsylvania asserting that Johnson, Dimaya, and Davis rendered his convictions unconstitutional and that § 2255 was ineffective; he also raised claims under the First Step Act and Davis.
- The District Court dismissed the § 2241 petition for lack of jurisdiction. Gordon timely appealed.
- The Third Circuit reviewed de novo legal questions and affirmed summary dismissal, holding Gordon failed to show his conduct had been decriminalized by intervening Supreme Court precedent and that the First Step Act is not retroactive on collateral review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a federal prisoner may use § 2241 to attack a conviction when a later Supreme Court decision allegedly decriminalizes the charged conduct (actual-innocence decriminalization exception to § 2255 exclusivity) | Gordon: Johnson/Dimaya/Davis rendered his convictions invalid, and § 2255 is ineffective so he may proceed under § 2241 | Govt: Gordon’s convictions were not decriminalized; § 2255 is the proper vehicle; § 2241 unavailable absent a colorable showing of actual innocence | Court: Dismissed — Gordon didn’t show intervening decision decriminalized his conduct; § 2241 jurisdiction lacking |
| Whether the First Step Act provides a retroactive basis for collateral relief via § 2241 | Gordon: The First Step Act relief applies and can be raised on collateral review | Govt: The First Step Act is not retroactive on collateral review | Court: Dismissed — First Step Act not retroactive on collateral review; cannot support § 2241 relief |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (Sup. Ct. 2015) (established unconstitutional vagueness of ACCA residual clause)
- Sessions v. Dimaya, 138 S. Ct. 1204 (Sup. Ct. 2018) (struck down vagueness in immigration statute’s residual clause)
- United States v. Davis, 139 S. Ct. 2319 (Sup. Ct. 2019) (invalidated residual clause of § 924(c))
- Cradle v. United States ex rel. Miner, 290 F.3d 536 (3d Cir. 2002) (standard of review for § 2255/§ 2241 questions)
- Okereke v. United States, 307 F.3d 117 (3d Cir. 2002) (motions under § 2255 are the presumptive means to challenge federal convictions)
- Cordaro v. United States, 933 F.3d 232 (3d Cir. 2019) (articulating actual-innocence/decriminalization exception to use § 2241)
- Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017) (same; explaining narrow § 2241 doorway)
- United States v. Walker, 990 F.3d 316 (3d Cir. 2021) (concluding Davis did not render Hobbs Act robbery noncriminal under categorical analysis)
- United States v. Hodge, 948 F.3d 160 (3d Cir. 2020) (First Step Act is not retroactive on collateral review)
- Burkey v. Marberry, 556 F.3d 142 (3d Cir. 2009) (no certificate of appealability required for § 2241 appeals by federal prisoners)