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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARCEL MALACHOWSKI,

#15287-052, 

§

§ 

 Petitioner, §

§

v. § No. 3:22-cv-01156-C (BT) 

§

NFN RIVERS, §

§

 Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Marcel Malachowski, a federal prisoner, filed a pro se petition for writ 

of habeas corpus under 28 U.S.C. § 2241. For the following reasons, the 

Court should dismiss the petition. 

I.

Malachowski is a Bureau of Prisons (BOP) inmate at Seagoville 

Federal Correctional Institution (FCI) in Seagoville, Texas. In April 2009, a 

jury in the Northern District of New York found him guilty of several felony 

offenses, including: (1) possession of one or more machine guns in violation 

of 18 U.S.C. § 922(o); (2) unlawful entry into the United States in violation 

of 8 U.S.C. § 1325(a); (3) being an unlawful alien in possession of firearms 

in violation of 18 U.S.C. § 922(g)(5)(A); and (4) illegal reentry after 

deportation or removal in violation of 8 U.S.C. § 1326(a). App. 12 (ECF No. 

10). App. 12 (ECF No. 10); Case Number 5:08-CR-701 (DNH). On December 

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21, 2009, the district court in New York sentenced him to 78 months’ 

imprisonment. Id. at 14.

Malachowski appealed to the Second Circuit Court of Appeals, and the 

Second Circuit affirmed the district court’s judgment. United States v. 

Malachowski, 415 F. App’x 307 (2d Cir. 2011). Thereafter, Malachowski filed 

several post-conviction motions, which were denied. Id. at 21-25. On 

December 23, 2016, he filed a motion to vacate, set-aside, or correct 

sentence under 28 U.S.C. § 2255. App. 26 (ECF No. 10). The court denied 

Malachowski’s § 2255 motion on July 26, 2018. Id. at 27.

In a second federal case out of the Northern District of New York, 

Malachowski was charged with being engaged in a continuing criminal 

enterprise (CCE), which involved the importation of thousands of kilograms 

of marijuana into the United States and possession with intent to distribute 

and the distribution of marijuana. Id. at 154; Case Number 1:09-CR-125-4. 

He pleaded guilty. App. 124 (ECF No. 10). On January 7, 2014, he was 

sentenced to a total term of 178 months’ imprisonment. Id. Malachowski’s 

sentence was ordered to run concurrent with the 78-month sentence from 

his first case. Id.

On April 29, 2022, Malachowski filed this petition for writ of habeas 

corpus under 28 U.S.C. § 2241. (ECF No. 3.) He argues “[c]larification” in 

Rehaif v. United States, 139 S. Ct. 2194 (2019), demonstrates he stands 

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“convicted” of “offenses to which he is otherwise innocent.” Mem. 21 (ECF 

No. 4). 

II.

A. Malachowski’s Rehaif claim fails to satisfy the savings clause. 

A federal prisoner seeking to challenge the manner in which his 

sentence is executed typically files a petition for a writ of habeas corpus 

under 28 U.S.C. § 2241. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 

2000). But if the prisoner seeks to collaterally attack the legality of his 

conviction or sentence, he will generally file a motion to vacate, set-aside, or 

correct sentence under 28 U.S.C. § 2255. See Cox v. Warden, Fed. Detention 

Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). However, a federal prisoner may use 

§ 2241 to challenge the legality of his conviction or sentence if he can satisfy 

the requirements of the § 2255 “savings clause.” The savings clause states:

An application for a writ of habeas corpus in behalf of a prisoner 

who is authorized to apply for relief by motion pursuant to this 

section, shall not be entertained if it appears that the applicant 

has failed to apply for relief, by motion, to the court which 

sentenced him, or that such court has denied him relief, unless 

it also appears that the remedy by motion is inadequate or 

ineffective to test the legality of his detention. 

Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000) (quoting 28 U.S.C. § 

2255(e) (emphasis added)). 

The movant bears the burden of showing that the § 2255 remedy is 

inadequate or ineffective. Reyes-Requena v. United States, 243 F.3d 893, 

901 (5th Cir. 2001) (quoting Pack, 218 F.3d at 452). In the Fifth Circuit, “§ 

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2241 is not a mere substitute for § 2255 and [ ] the inadequacy or inefficacy 

requirement is stringent.” Reyes-Requena, 243 F.3d at 901; see also Pack, 

218 F.3d at 453 (“merely failing to succeed in a section 2255 motion does not 

establish the inadequacy or ineffectiveness of the section 2255 remedy”). 

The bar against filing a successive § 2255 motion does not render § 2255 

“inadequate or ineffective” within the meaning of the savings clause. Tolliver 

v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). The fact that a movant who 

never filed a first § 2255 motion may now be barred from doing so by the 

one-year statute of limitations does not render § 2255 “inadequate or 

ineffective.” Loredo v. Joslin, 2004 WL 2208124, at *1 (N.D. Tex. Oct. 1, 

2004). Rather, the savings clause of § 2255 applies to a claim (i) that is based 

on a retroactively applicable Supreme Court decision which establishes that 

the movant may have been convicted of a nonexistent offense, and (ii) that 

was foreclosed by circuit law at the time when the claim should have been 

raised in the movant’s trial, appeal, or first § 2255 motion. See ReyesRequena, 243 F.3d at 904; see also Santillana v. Upton, 846 F.3d 779, 782 

(5th Cir. 2017); Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010). When a 

petitioner fails to satisfy the savings clause, the court should dismiss the § 

2241 petition for lack of jurisdiction. See Lang v. Wilson, 2018 WL 684890, 

at *3 (N.D. Tex. Feb. 1, 2018) (citing Christopher v. Miles, 342 F.3d 378, 379, 

385 (5th Cir. 2003)). 

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Here, Malachowski’s attempt to satisfy the savings clause with the 

Supreme Court’s decision in Rehaif fails because he has not shown he is 

relying on a “retroactively applicable Supreme Court decision.” ReyesRequena, 243 F.3d at 904. Rehaif is not retroactively applicable on collateral 

review. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (holding 

Rehaif “was not made retroactive to cases on collateral review by the 

Supreme Court”); Nixon v. United States, 2019 WL 6498088, at *3 (N.D. 

Tex. Dec. 3, 2019) (same); Young v. United States, 2020 WL 1237402, at *2 

(N.D. Tex. Feb. 18, 2020), rec. adopted 2020 WL 1236571 (N.D. Tex. Mar. 

13, 2020) (same); United States v. Navarro, 2020 WL 709329, at *3 (S.D. 

Tex. Feb. 11, 2020) (same). Because Rehaif is not retroactively applicable on 

collateral review, Malachowski cannot satisfy the savings clause. See Abram 

v. McConnell, 3 F.4th 783, 785 (5th Cir. 2021) (providing the savings clause 

requires a petitioner to show his § 2241 petition raises a claim “based on a 

retroactively applicable Supreme Court decision”) (quoting Santillana, 846 

F.3d at 782). 

Malachowski also has not met his burden of demonstrating Rehaif 

establishes he “may have been convicted of a nonexistent offense.” Abram, 

3 F.4th at 786; Reyes-Requena, 243 F.3d at 904. Rather, Rehaif merely 

addressed the Government’s burden of proof in a prosecution for possession 

of a firearm while being illegally or unlawfully in the United States. See 

Rehaif, 139 S. Ct. at 2200 (holding in a prosecution for possession of a 

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firearm under § 922(g) and § 924(a), the Government must prove: (1) the 

defendant knew he possessed the firearm, and (2) he knew he belonged to 

the relevant category of restricted persons barred from possessing a 

firearm); see also Abram, 3 F.4th at 784 (recognizing Rehaif held, “the 

Government must prove that a defendant knows of his status as a person 

barred from possessing a firearm”) (quoting Rehaif, 139 S. Ct. 2195); 

Williams v. Underwood, 2020 WL 1866895, at *2 (N.D. Tex. Mar. 17, 2020)

(recognizing Rehaif merely addressed the Government’s “burden of proof”), 

rec. adopted 2020 WL 1862576 (N.D. Tex. Apr. 14, 2020). 

Malachowski has failed to show he is similarly situated to the petitioner 

in Rehaif. In Rehaif, the petitioner was in this country on a nonimmigrant 

student visa, and he was in a situation where a reasonable person might be 

confused about their immigration status when he was convicted of being an 

alien unlawfully in possession of a firearm. See Rehaif, 139 S. Ct. at 2194. 

Malachowski does not argue he did not know of his alien status, and to 

satisfy the savings clause, it is necessary for him to show he was similarly 

situated to the defendant in Rehaif. Instead, Malachowski represents he is 

registered in the Kamloops Band of Indians, and he is an American Indian. 

Mem. 12-13, 18, 26-27, 30-32 (ECF No. 4). 

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B. Malachowski is not in custody on the conviction for which he 

seeks habeas relief. 

Malachowski concedes he is no longer “in custody” for his conviction 

under § 922(g)(5)(A), which is the basis of his Rehaif argument. Mem. 3 

(ECF No. 4) (conceding “[his] sentence has expired”). He was sentenced in 

his first federal case, Case Number 5:08-CR-701 (DNH), to 78 months’ 

imprisonment. If he had served that sentence as a “stand alone” sentence, 

his release date, including good time, would have been July 17, 2014. See 

App. 161-63 (ECF No. 10). Malachowski’s projected release date from his 

second federal sentence is May 2, 2025, and that release date also reflects 

“good time credit.” Id. The May 2025 release date incorporates both of 

Malachowski’s federal sentences: the sentence for 78 months (first sentence) 

and the sentence for 178 months (second sentence). Id. at 161. Malachowski 

is not “in custody” on the first federal sentence, the sentence for which he 

now seeks habeas relief, as he is not presently in custody on that sentence 

and is not serving a term of supervised release. See 18 U.S.C. § 3624(e)

(stating a term of supervised release does not run during any period when 

the individual is imprisoned in connection with another crime including and 

providing an exception where the term of imprisonment on a federal state, 

or local crime is less than thirty consecutive days). 

In sum, Malachowski has served his first federal sentence—the 

sentence from which he seeks relief under § 2241—and he is not entitled to 

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relief on his petition under § 2241, which only authorizes a writ of habeas 

corpus for a prisoner who is “in custody.” 28 U.S.C. § 2241(c)(3); Rodriquez 

v. Director, 2021 WL 291458, at *1 (N.D. Tex. Jan. 27, 2021); see also Pierre 

v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976) (the function of a writ 

of habeas corpus is to grant relief from unlawful imprisonment or custody). 

C. Malachowski’s non-Rehaif claims do not satisfy the savings 

clause. 

Malachowski makes other non-Rehaif arguments in his petition, but 

he has not shown that any one of these claims satisfies the savings clause. 

He argues evidence of his “native status” was improperly excluded by the 

trial court, and his trial counsel provided ineffective assistance of counsel. 

Mem. 25-28, 29-32 (ECF No. 4). Both claims fail under the savings clause 

because Malachowski has not shown they are based on a retroactively 

applicable Supreme Court decision that demonstrates he may have been 

convicted of a nonexistent offense. See Santillana, 846 F.3d at 782; see also 

Ball v. Conner, 83 F. App’x 621, 622 (5th Cir. 2003) (per curiam) (“Ball’s 

claim of ineffective assistance of counsel fails to satisfy the requirements of 

the savings clause. The claim is not based on a retroactively applicable 

Supreme Court decision which establishes Ball’s innocence.”). For these 

reasons, Malachowski’s non-Rehaif claims do not satisfy the savings clause, 

and his petition should be dismissed. See Christopher, 342 F.3d at 379, 385; 

Lang, 2018 WL 684890, at *3. 

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D. Malachowski is not entitled to an evidentiary hearing. 

Last, Malachowski argues he is entitled to an evidentiary hearing to 

address his petition. Reply 10-11 (ECF No. 11). A federal habeas court is not 

required to conduct an evidentiary hearing in each case. McDonald v. 

Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998). “To receive a federal 

evidentiary hearing, the burden is on the habeas corpus petitioner to allege 

facts which, if proved, would entitle him to relief.” United States v. Tubell, 

37 F.3d 175, 179 (5th Cir. 1994) (quoting Ellis v. Lynaugh, 873 F.2d 830, 840 

(5th Cir. 1989)); see also Wahl v. Bureau of Prisons Officers, 281 F. App’x. 

359, 360 (5th Cir. 2008) (per curiam) (applying Ellis to a § 2241 case). An 

evidentiary hearing is not necessary when the record is complete, or the 

petitioner raises only legal claims that can be resolved without obtaining 

additional evidence. Tubell, 37 F.3d at 179 (citing Ellis, 873 F.2d at 840); see 

also Ortloff v. Fleming, 88 F. App’x 715, 717 (5th Cir. 2004) (per curiam). 

As discussed, Malachowski has failed to show any of his claims satisfy 

the savings clause, and his petition is subject to dismissal. See Christopher, 

342 F.3d at 379, 385; Lang, 2018 WL 684890, at *3. Because no additional 

development of Malachowski’s petition is warranted, his motion for an 

evidentiary hearing is denied. 

III.

For the foregoing reasons, the Court should dismiss Malachowski’s § 

2241 petition. 

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Signed April 24, 2023.

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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