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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

TODD McDONALD,

Petitioner,

v. Civil Action No. 4:22-CV-836-P

 

FREDDY GARRIDO, Warden

FMC-Fort Worth, 

 Respondent.

 OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2241 filed by petitioner Todd McDonald (“McDonald”), a federal 

prisoner confined at FMC-Fort Worth in Fort Worth, Texas. Pet. 1,9, ECF No. 1. 

The Respondent filed a response with appendix. ECF Nos. 6 and 7. After review 

of the § 2241 petition, response with appendix, reply and applicable law, the 

Court concludes that the § 2241 petition must be DISMISSED for lack of 

jurisdiction. 

I. BACKGROUND

On April 5, 2017, McDonald was charged in a five-count Indictment 

issued by a Federal Grand Jury for the United States District Court for the 

Western District of Arkansas in case number 6:17-CR-60014-001. App. 

(Indictment) 1-5, ECF No. 7. Counts One and Two charged McDonald with 

online enticement of a minor in violation of 18 U.S.C. § 2422(b) Id. at 3. Count 

Three charged McDonald with knowingly receiving child pornography in 

violation of 18 U.S.C. §§ 2252A(a)(2) and (b). Id. at 4. Count Four charged 

McDonald with knowingly possessing a computer containing images of child 

pornography in violation of 18 U.S.C. §§ 2552A(a)(5)(B) and (b)(2). Id. Count 

Five charged McDonald with possession of ammunition as a convicted felon in 

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Id.

On October 10, 2017, McDonald pleaded guilty to Counts One and Five of 

the Indictment. App. (Plea Agreement) 8-22, ECF No. 7. On November 7, 2018, 

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McDonald was sentenced to a total sentence of 210-months on Count One and 

120 months on County Two, with the sentences to run concurrently. (Minute 

Order) 23, ECF No. 7. Thereafter, McDonald filed an appeal and two prior 

motions seeking relief under 28 U.S.C. § 2255, all of which were denied. App. 

(Court of Appeals Mandate, Order Resolving § 2255 Motions) 25-31, ECF No. 7. 

II. LEGAL STANDARD

A writ of habeas corpus under 28 U.S.C. § 2241 and a motion to vacate, 

set aside, or correct a sentence under 28 U.S.C. § 2255 “are distinct mechanisms 

for seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 

2000). A § 2255 motion is the proper means of attacking errors that occurred at or 

before sentencing. Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). By contrast, a § 

2241 petition is a means of attacking the manner in which a sentence is executed 

(e.g., for attacking how the Federal Bureau of Prisons calculates a release date 

when taking into account things like presentence time in custody). See Tolliver v. 

Dobre, 211 F.3d 876, 877 (5th Cir. 2000); United States v. Cleto, 956 F.2d 83, 84 

(5th Cir. 1992). A § 2241 petition that challenges the validity of a federal 

conviction and sentence, therefore, generally must either be dismissed or 

construed as a § 2255 motion. Pack, 218 F.3d at 452.

Notwithstanding this general rule, the savings clause of § 2255(e) permits 

the filing of a § 2241 petition to challenge the validity of a sentence in certain 

limited circumstances. That portion of § 2255 provides:

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.

28 U.S.C. § 2255(e). Hence, the Court may consider a § 2241 petition attacking a 

sentence’s validity only if the petitioner establishes that the remedy under § 2255 

is “inadequate or ineffective.” See Tolliver, 211 F.3d at 878; see also Pack, 218 

F.3d at 452 (explaining that the petitioner has the burden to show that the § 2255 

remedy is inadequate or ineffective so as to trigger the savings clause).

The bar against filing successive § 2255 motions does not render § 2255 

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

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211 F.3d at 878. Nor does the fact that a petitioner who never filed a first § 2255 

motion may now be barred from doing so by the one-year statute of limitations. 

See See Loredo v. Joslin, No. 3:04-CV-2070-N, 2004 WL 2208124, at *1 (N.D. 

Tex. Oct. 1, 2004), rep and rec. adopted, 2004 WL 2600502 (N.D. Tex. Nov. 12, 

2004) (citing United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000)).

Instead, the Fifth Circuit has held that the savings clause of § 2255(e) applies to a 

claim only if:

(1) the [§ 2241] petition raises a claim “that is based on a 

retroactively applicable Supreme Court decision”;

(2) the claim was previously “foreclosed by circuit law at the time 

when [it] should have been raised in petitioner’s trial, appeal or 

first § 2255 motion”; and

(3) that retroactively applicable decision establishes that “the 

petitioner may have been convicted of a nonexistent offense.”

Santillana v. Upton, 846 F.3d 779, 782 (5th Cir. 2017) (quoting Garland v. Roy, 

615 F.3d 391, 394 (5th Cir. 2010) (quoting Reyes-Requena v. United States, 243 

F.3d 893, 895 (5th Cir. 2001)). 

When a petitioner cannot satisfy the savings clause, the proper disposition 

is dismissal of the § 2241 petition for lack of jurisdiction. See Lang v. Wilson, No. 

4:16-CV-1018-O, 2018 WL 684890, at *3 (N.D. Tex. Feb. 1, 2018) (citing 

Christopher v. Miles, 342 F.3d 378, 379, 385 (5th Cir. 2003)).

III. ANALYSIS

In this case, McDonalds’s attempt to proceed under § 2241 fails at the 

threshold because McDonald does not rely on any “retroactively applicable 

Supreme Court decision” to establish his alleged entitlement to relief. See 

Santillana, 846 F.3d at 782. McDonald argues that he may proceed under the 

savings clause because Rehaif v. United States, 139 S. Ct. 2191 (2019), 

announced a new rule of statutory law that he suggests applies retroactively. Pet. 

6, 8, ECF No. 1. 

In Rehaif, the petitioner was an alien who entered the country on a nonimmigrant student visa to attend college but was dismissed for poor grades. 

Rehaif, 139 S. Ct. at 2194. The university told the petitioner that his “immigration 

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status” would be terminated unless he transferred to a different university or left 

the country. Id. The petitioner subsequently visited a firing range, where he shot 

two firearms. After learning of the petitioner’s visit to the firing range, the 

government prosecuted him for possessing firearms as an alien unlawfully present 

in the United States under § 922(g) and § 924(a)(2). Id. After being convicted, the 

United States Supreme Court ultimately granted certiorari and held that, in a 

prosecution under § 922(g), the Government must prove that a defendant knows 

of his status as a person barred from possessing a firearm. Id. at 2195.

Although the Supreme Court and the Fifth Circuit have not addressed 

whether Rehaif applies retroactively in § 2255 or § 2241 cases on collateral 

review, the Eleventh Circuit and numerous district courts within the Fifth Circuit 

have determined that Rehaif is not retroactively applicable. See In re Palacios, 

931 F.3d 1314, 1315 (11th Cir. 2019) (holding that Rehaif was not made 

retroactive to cases on collateral review); Malachowski v. Rivers, No.3:22-CV1156-C (BT), 2023 WL 3604731, at *2 (N.D. Tex. Apr. 24, 2023), rep. and rec. 

adopted, 2023 WL 3609166 (N.D. Tex. May 23, 2023) (“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.’ Reyes-Requena, 243 F.3d at 904. Rehaif is not retroactively 

applicable on collateral review.” ); Helm v. United States, 2:19-CV-00306, 2020 

WL 4480868, at *3 (S.D. Tex. June 30, 2020), rep. and rec. adopted, 2020 WL 

4470399 (S.D. Tex. Aug. 4, 2020) (holding that Rehaif does not apply 

retroactively to satisfy the savings clause); Robbins v. Warden, FCI Beaumont, 

1:19-CV-388, 2019 WL 5596829, at *1 (E.D. Tex. Oct. 30, 2019) (Petitioner 

cannot meet requirements of Reyes-Requena through Rehaif); cf Abram v. 

McConnell, 3 F.4th 783, 785 (5th Cir. 2021) (choosing to not address whether 

petitioner Abram satisfied his burden to show the first two savings clause factors 

because [he] failed to carry his burden on the third factor). Because Rehaif is not 

retroactively applicable to cases on collateral review, McDonald cannot meet the 

first requirement of the savings clause. Accordingly, he cannot proceed under § 

2241.

Moreover, even if Rehaif applied retroactively, McDonald’s claims would 

still fail to meet the remaining prongs of the Fifth Circuit’s savings clause test. 

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McDonald also fails to show actual innocence. To the contrary, Rehaif does not 

establish that McDonald was actually innocent, and it did not decriminalize the 

conduct for which he was convicted. Instead, it merely addressed the 

Government’s burden of proof. See Williams v. Underwood, 3:19-CV-2043-M 

(BT), 2020 WL 1866895, at *2 (N.D. Tex. Mar. 17, 2020), rep. and rec. adopted, 

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

Specifically, Rehaif requires some showing that a defendant possessed a 

firearm while being actually aware of his “relevant status,” meaning that he knew 

that he was “a felon, an alien unlawfully in this country, or the like.” Rehaif, 139 

S. Ct. at 2195-96. Federal courts have interpreted the Supreme Court’s holding in 

this manner and have “squarely rejected the notion that Rehaif requires that a 

defendant know that he was prohibited from possessing a firearm as a result of 

that status.” See Walker v. Quintana, 5:19-CV-321, 2019 WL 6310722, at *2 

(E.D. Ky. Nov. 25, 2019) (citing United States v. Bowens, 938 F. 3d 790, 797 (6th 

Cir. 2019); see also Gray v. United States, 3:19-CV-607, 2020 WL 127646, at *3 

(M.D. Tenn. Jan. 10, 2020)) (“While Rehaif was in a situation where a reasonable 

person could be confused about his immigration status, Gray can make no such 

argument about the status of his prior felony conviction.”). 

Here, McDonald does not allege any plausible facts suggesting that he did 

not know of his status as a felon, as would be required to arguably make a 

showing that he was similarly situated to the Rehaif defendant, who allegedly did 

not know his precise “immigration status” at the time he possessed a firearm at a 

firing range. As the Fifth Circuit has noted:

Convicted felons typically know they’re convicted felons. And 

they know the Government would have little trouble proving that 

they knew. So it is hard to imagine how their conviction or guilty 

plea was prejudiced by any error under Rehaif. As Justice Alito put 

it: “Juries will rarely doubt that a defendant convicted of a felony 

has forgotten that experience, and therefore requiring the 

prosecution to prove that the defendant knew that he had a prior 

felony conviction will do little for defendants.”

United States v. Lavalais, 960 F.3d 180, 184 (5th Cir. 2020) (quoting Rehaif, 139 

S. Ct. at 2209 (Alito, J., dissenting)).

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IV. CONCLUSION and ORDER

Because McDonald’s claim is not based upon a Supreme Court decision 

that is retroactively applicable and that establishes that he may have been 

convicted to a nonexistent offense, he has not met his burden under 28 U.S.C. § 

2255(e) to show that a § 2255 remedy is inadequate or ineffective. Consequently, 

the Court lacks jurisdiction to entertain his claims through a petition under 28 

U.S.C. § 2241, and the § 2241 petition must be dismissed for lack of jurisdiction.

It is therefore ORDERED that Todd McDonald’s petition for writ of 

habeas corpus under 28 U.S.C. § 2241 is DISMISSED for lack of jurisdiction. 

SO ORDERED on this 8th day of June, 2023.

______________________________ 

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

 

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