IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WAYNE NEVILLE MORRIS, 

Petitioner, 

v. 

MARION FEATHER, Warden, FCI 

Sheridan, 

Respondent. 

WAYNE NEVILLE MORRIS 

Fed. Reg. No. 28946-086 

FCI Sheridan 

P.O. Box 5000 

Sheridan, Oregon 97378-5000 

Petitioner, Pro Se 

S. AMANDA MARSHALL 

United States Attorney 

District of Oregon 

NATALIE K. WIGHT 

Assistant U.S. Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, Oregon 97204-2902 

Attorneys for Respondent 

AIKEN, Judge 

1 -- OPINION AND ORDER 

3: 14-cv-008 84-AA 

OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 1 of 7
Petitioner, an inmate at FCI Sheridan, brings this habeas corpus proceeding pursuant to 28 

U.S.C. § 2241. For the reasons set forth below, the petition is dismissed, without prejudice, for lack 

of jurisdiction. 

BACKGROUND 

On April1, 1999, petitioner was indicted for armed robbery and brandishing a firearm during 

the robbery. Petitioner summarizes the facts of the robbery as follows: 

On March 26, 1999, the petitioner drove his brother (co-defendant) to Key 

Bank in Shoreline, Washington, just outside of Seattle. While [petitioner] waited 

outside in a "little nook," petitioner's co-defendant went running into the bank, gun 

held out. Pointing his gun at a teller, the co-defendant put a blue gym bag on the 

teller's counter and demanded that the teller "put the money in the bag." He left the 

bank with over $30,000. 

The co-defendant ran across the street and got back in the car with the 

petitioner. The co-defendant shot at a police officer as they were sitting in traffic. 

While the Petitioner [was] driving, the two led the police on an extended car chase. 

During the chase, the co-defendant shot a FBI agent Roberta Burroughs. Just before 

the chase ended, the co-defendant fired shots again at a police officer. The petitioner 

finally stopped when he was shot and the car was disabled. 

Pet's Memo. in Support ofHabeas Petition (#3) at 1; US. v. Morris, 43 Fed. Appx. 150, 152 (9th 

Cir. 2002). 

On October 27, 1999, a second superseding indictment was issued charging petitioner as 

follows: (1) conspiracy to commit bank robbery and to use and carry a firearm during and in relation 

to a crime of violence; (2) armed bank robbery; (3) brandishing a firearm during and in relation the 

bank robbery; ( 4) assault of a federal officer; and (5) carrying and discharge of a firearm during and 

in relation to an assault of a federal officer. Id. at 152-53; Resp.'s Response (#15), Exh. 2. 1 As to 

counts 2-5, petitioner was charged as an aider and abetter. See 18 U.S.C. § 2. 

1 Pursuant to 18 U.S.C. § 2, a person who "aids or abets" the commission of a criminal 

offense against the United States is punishable as a principal. 

2 -- OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 2 of 7
On December 10, 1999, petitioner was convicted of all five counts. Resp. 's Response, Exh. 

7. Petitioner was sentenced to a 528-month term of imprisonment, which included a 1 0-year 

sentence on count 3 (the mandatory minimum sentence for the discharge of a firearm in violation 

of 18 U.S.C. § 924(c)(1)(A)(iii)).2 Petitioner appealed his conviction, arguing, inter alia, that his 

conviction on count 3, for aiding and abetting the use of a firearm during the bank robbery, must be 

vacated because the district court's imposition of the mandatory minimum sentence for discharging 

a firearm under 18 U.S.C. § 924(c)(1)(A)(iii) did not conform to the second superseding indictment 

charging him with brandishing the firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Morris, 43 

Fed. Appx. at 155. The Ninth Circuit rejected this argument based upon Harris v. United States, 

536 U.S. 545 (2002), the controlling case law at the time: 

[T]he variance between the indictment and proof at trial did not abrogate 

Morris's Fifth Amendment rights, because the variance did not affect a crime element 

of§ 924(c). Instead, "brandishing and discharging [are] sentencing factors to be 

found by the judge, not offense elements to be found by the jury." Harris v. United 

States, 536 U.S. 545, 122 S.Ct. 2406,2414, 153 L.Ed.2d 524 (2002). These factors 

therefore "need not be alleged in the indictment. ... " Id. at 2420. The second 

superseding indictment's allegation of "brandishment" was mere surplusage. 

Because the discharge of a firearm is a sentencing factor, not a crime element, 

its omission from the second superseding indictment did not abrogate Morris's Fifth 

Amendment rights. The variance between the indictment and proof at trial was not 

plainly erroneous. 

Morris, 42 Fed. Appx. at 156 (footnotes omitted). The Ninth Circuit also concluded that a rational 

jury could conclude that petitioner aided and abetted his brother's brandishing or discharge of a 

firearm during the flight from the bank robbery, and in relation to the assault of a federal officer. Id. 

2 18 U.S.C. § 924(c)(l)(A)(i) provides that anyone who uses or carries a firearm in 

relation to a crime of violence shall be sentenced to a term of imprisonment of not less than 5 

years. However, if the firearm is brandished, the sentence shall be no less than 7 years, and if the 

firearm is discharged, the sentence shall be no less than 10 years. 18 U.S.C. § 924(c)(1)(A)(ii) & 

(iii). 

3 -- OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 3 of 7
at 155. 

In June of 2013, the U.S. Supreme Court issued its decision in Alleyne v. US., 133 S.Ct. 

2151 (20 13), extending the rule announced inApprendi v. New Jersey, 530 U.S. 466 (2000), to facts 

that increase a mandatory minimum sentence. The Court reasoned that any fact that, by law, 

increases the penalty for a crime is a substantive element of the offense that must be submitted to 

the jury and found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2162-63. In so holding, the 

Court expressly overruled its prior decision in Harris: 

[B]ecause the fact of brandishing aggravates the legally prescribed range of 

allowable sentences, it constitutes an element of a separate, aggravated offense that 

must be found by the jury, regardless of what sentence the defendant might have 

received if a different range had been applicable. * * * The essential point is that the 

aggravating fact produced a higher range, which, in turn, conclusively indicates that 

the fact is an element of a distinct and aggravated crime. It must, therefore, be 

submitted to the jury and found beyond a reasonable doubt. 

Because there is no basis in principle or logic to distinguish facts that raise 

the maximum from those the increase the minimum, Harris was inconsistent with 

Apprendi. It is, accordingly, overruled. 

Id. at 2162-63 (emphasis in original, footnotes omitted). 

The Ninth Circuit recently held that Alleyne announced a new rule of criminal procedure 

which, like Apprendi, does not apply retroactively to permit a successive § 2255. Hughes v. US., 

770 F.3d 814, 818 (9th Cir. 2014); see 28 U.S.C. § 2255(h)(2). 3 

DISCUSSION 

"A federal prisoner who seeks to challenge the legality of confinement must generally rely 

on a § 2255 motion to do so." Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012); Muth v. 

Fondren, 676 F.3d 815, 818 (9th Cir. 2012). An exception to this general rule exists if a§ 2255 

3 Petitioner's reliance upon US. v. Lira, 725 F.3d 1043 (9th Cir. 2013), for his assertion 

that the Ninth Circuit has applied Alleyne retroactively on collateral review is misplaced given 

the fact that the defendant in Lira raised Alleyne on direct review of his conviction. 

4 -- OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 4 of 7
motion is "inadequate or ineffective" to test the legality of the petitioner's detention, in which case 

the petitioner may bring a habeas corpus petition under 28 U.S.C. § 2241 in the custodial court. 28 

U.S.C. § 2255(e);Marrero, 682F.3dat 1192;Alaimalov. US., 645 F.3d 1042, 1047 (9th Cir. 2011). 

This exception is referred to as the "savings clause" or "escape hatch." Marrero, 682 F.3d at 1192; 

Muth, 676 F.3d at 818. 

The remedy under § 2255 is inadequate or ineffective only if the petitioner demonstrates that 

he (1) is actually innocent; and (2) has not had an unobstructed procedural shot at presenting his 

claim. Marrero, 682 F.3d at 1192; Muth, 676 F.3d at 819. Proof of"actual innocence" requires a 

showing that in light of all the evidence, it is more likely than not that no reasonable juror would 

have convicted him. Marrero, 682 F.3d at 1193;Muth, 676 F.3d at 819;Alaimalo, 645 F.3d at 1047. 

In other words, the petitioner must demonstrate actual innocence, not mere legal insufficiency. 

Marrero, 682 F.3d at 1193; Muth, 676 F.3d at 819. The burden to show that a§ 2255 is ineffective 

or inadequate rests upon the petitioner. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). 

In the instant proceeding, petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, on the 

basis that Alleyne renders his conviction on count 3 unlawful because the indictment and the jury's 

verdict were at variance (as alleged in his direct appeal) and, therefore, the jury never found 

petitioner guilty of brandishing beyond a reasonable doubt. Respondent moves the court to dismiss 

this proceeding on the basis that petitioner's habeas petition is a disguised, successive § 2255 which 

must be brought in the sentencing court. 4 

Petitioner makes no factual showing that he did not aid and abet his brother in brandishing 

a weapon in relation to the bank robbery. On the contrary, petitioner's own recitation of the facts 

4 In 2004, petitioner filed his first motion under 28 U.S.C. § 2255, raising claims not 

relevant to this proceeding. See Morris v. US., Case No. C04-0266C (W.D. Wash.). The district 

court denied the motion. Id. 

5 -- OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 5 of 7
in his supporting memorandum to this court supports a finding that he is guilty of aiding and abetting 

both brandishing and discharging a firearm. Petitioner's Memo. in Support (#3) at 1. Moreover, the 

Ninth Circuit previously concluded that there was sufficient evidence to convict petitioner of 

brandishing the firearm (count 3). Morris, 43 Fed. Appx. at 155-56. 

Petitioner offers no new evidence not previously considered by the Ninth Circuit on direct 

appeal. Hence, petitioner has failed to demonstrate that it is more likely than not that no reasonable 

juror would have convicted him of brandishing a firearm. Petitioner's contention that (1) his 

sentence on count 3 for discharging a firearm is at variance with the second superseding indictment 

charging brandishing; and (2) the jury, rather than the judge, should have decided whether he 

brandished or discharged a firearm (as required by the Supreme Court's Alleyne decision), are 

procedural arguments and do not demonstrate hisfactual innocence. See Hughes, 770 F.3d at 817 

(holding thatAlleyne announced new procedural, not substantive, rule); Wynter v. Warden of Atwater 

USP, 2015 WL 779046 *2 (E.D. Cal. Feb. 24, 2015) (petitioner failed to satisfy savings clause 

because "Alleyne claim presents a purely legal argument that does not suffice to show Petitioner's 

actual innocence"). 

Moreover, because Alleyne is not retroactive on collateral review, he does not have the 

benefit ofthat decision to support his claim of actual innocence. See Hasan v. Feather, 2015 WL 

533255, *4 (D. Or. Feb. 5, 2015);Pettawayv. Feather, 2015 WL 128041, *2-3 (D. Or. Jan. 7, 2015), 

appeal filed, Feb. 11, 2015; Spears v. Feather, 2014 WL 2893279, *3 (D. Or. June 25, 2014). For 

all of these reasons, petitioner has failed to make the requisite showing ofjactual innocence and, 

therefore, has failed to demonstrate that a§ 2255 motion is ineffective or inadequate to challenge 

the legality of his conviction and sentence. Consequently, this court lacks habeas corpus jurisdiction. 

Ill 

6 -- OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 6 of 7
CONCLUSION 

Based on the foregoing, petitioner's petition for writ of habeas corpus (#2) is DISMISSED, 

without prejudice, for lack of jurisdiction. Petitioner's motion for the court to take judicial notice 

of the fact that Hughes does not apply to his case (#29) is DENIED. 

This court declines to transfer this case to the Western District of Washington in light of the 

fact that petitioner has made no showing that he has been granted permission to file a successive 

petition. See 28 U.S.C. § 2255(h). Hence, the interests of justice do not warrant a transfer under 28 

U.S.C. § 1631. Because petitioner has not made a substantial showing of the denial of a 

constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED. 

DATED this of April, 2015 

Ann L. Aiken 

United States District Judge 

7 -- OPINION AND ORDER 

Case 3:14-cv-00884-AA Document 31 Filed 04/06/15 Page 7 of 7