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KM 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Michael Lee Gordon, 

Petitioner, 

v. 

R.L. Rhodes, 

Respondent. 

No. CV 18-00041-TUC-RM (BGM) 

ORDER 

Petitioner Michael Lee Gordon, who is confined in the United States PenitentiaryTucson, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 

§ 2241 (Doc. 1). In a February 1, 2018 Order (Doc. 3), the Court directed Petitioner to 

pay the filing fee or file an Application to Proceed In Forma Pauperis and dismissed the 

Petition with leave to file an amended petition on the court-approved form. On February 

9, 2018, Petitioner filed an Amended Petition (Doc. 5) and an Application to Proceed In 

Forma Pauperis (Doc. 6). 

I. Application to Proceed In Forma Pauperis

Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate 

trust account balance is less than $25.00. Accordingly, the Court will grant Petitioner’s 

Application to Proceed In Forma Pauperis. See LRCiv 3.5(b). 

II. Amended Petition 

 In his Amended Petition, Petitioner names Warden R. L. Rhodes as Respondent 

and claims his criminal sentence is unconstitutional. On May 20, 1999, Petitioner was 

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convicted in the United States District Court for the Southern District of Ohio, case 

number 2:97cr167, of seven Hobbs Act violations under 18 U.S.C. § 1851 and seven 

firearm violations pursuant to 18 U.S.C. § 924(c). Petitioner was sentenced to 137 1⁄2 

years’ imprisonment. Petitioner appealed and the Sixth Circuit Court of Appeals 

affirmed his conviction and sentence. See United States v. Gordon, No. 99-3679, 2000 

WL 1785905 (6th Cir. 2000). In 2001, Petitioner filed a § 2255 motion, which the 

sentencing court denied. 

On June 23, 2016, Petitioner filed, through counsel, a successive § 2255 Motion in 

the sentencing court (Doc. 498 in CR97-167), arguing his conviction and sentence were 

invalidated by Johnson v. United States, ___U.S.___, 135 S. Ct. 2551 (2015). On the 

same date, Petitioner also filed a request to file a second/successive petition with the 

Sixth Circuit Court of Appeals. On September 1, 2016, the Sixth Circuit denied 

Petitioner’s request, noting that “§ 924(c) is unaffected by the holding in Johnson.” In 

re: Michael Lee Gordon, No. 16-3629 (6th Cir. 2016), citing United States v. Taylor, 814 

F.3d 340 (6th Cir. 2016). 

 In his Amended § 2241 Petition, Petitioner argues that his Hobbs Act convictions 

were not “crimes of violence” because they did not have the element that he “used [or] 

attempted to use or threatened to use force or violence during the crimes, so therefore 

[his] convictions and sentences for 18 U.S.C. [§] 924(c) are invalid and cannot stand 

because Hobbs Act robbery as it pertains to [Petitioner] and [his] case are not proper 

predicate offenses for enhancement of 18 U.S.C. § 924(c).” Petitioner further argues that 

Johnson “ruled the ‘residual clause’ unconstitutionally vague” and that the “use or 

attempted use of force” clause of § 924(c) is similarly vague and therefore 

unconstitutional. In his Memorandum of Law (Doc. 1), Petitioner argues that his claims 

are appropriately filed in a § 2241 petition because they are based on a new rule of law 

and because he is actually innocent of the § 924(c) convictions. 

III. Discussion

 A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is generally the 

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appropriate method for challenging a federally imposed conviction or sentence, including 

a challenge that “the sentence was imposed in violation of the Constitution or laws of the 

United States, or that the court was without jurisdiction to impose such sentence, or that 

the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a); 

Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988). A § 2241 petition for writ of 

habeas corpus is not a substitute for a motion under § 2255. McGhee v. Hanberry, 604 

F.2d 9, 10 (5th Cir. 1979). 

 The Court will not consider a § 2241 petition by a prisoner authorized to apply for 

§ 2255 relief “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); United States v. Pirro, 104 F.3d 297, 299 (9th 

Cir. 1997). This exception is narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th 

Cir. 2003). 

 The § 2255 remedy is not inadequate or ineffective merely because the statute of 

limitations bars Petitioner from filing a motion under § 2255, the sentencing court has 

denied relief on the merits, or § 2255 prevents Petitioner from filing a second or 

successive petition. See id.; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999); 

Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999); Tripati, 843 F.2d at 1162. The 

§ 2255 remedy is inadequate or ineffective “when a petitioner (1) makes a claim of actual 

innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” 

Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quoting Stephens v. Herrera, 464 

F.3d 895, 898 (9th Cir. 2006)). In determining whether a petitioner has had an 

unobstructed procedural shot to pursue his claim, the court considers “(1) whether the 

legal basis for petitioner’s claim ‘did not arise until after he had exhausted his direct 

appeal and first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to 

petitioner’s claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 

328 F.3d at 1060-61). 

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 The burden of coming forward with evidence affirmatively showing the 

inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner. McGhee, 

604 F.2d at 10; Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). Petitioner has 

failed to meet this burden because he has not demonstrated the § 2255 remedy was 

inadequate or ineffective to test the legality of his detention. In denying Petitioner’s 

request to file a successive § 2255 motion that raised the same issues as the pending 

Petition, the Sixth Circuit determined Johnson did not invalidate § 924(c) and therefore 

Petitioner could not show its new rule of constitutional law applies to his case. 

Accordingly, the Court will dismiss the Amended § 2241 Petition and this case for lack 

of jurisdiction. See 28 U.S.C. § 2255(a); Tripati, 843 F.2d at 1163. 

IT IS ORDERED:

 (1) Petitioner’s Application to Proceed In Forma Pauperis (Doc. 6) is granted. 

 (2) Petitioner’s Amended Petition Under 28 U.S.C. § 2241 (Doc. 5) and this 

case are dismissed. 

 (3) The Clerk of Court must enter judgment accordingly and close this case. 

(4) Although Petitioner has brought his claims in a § 2241 petition, a certificate 

of appealability is required where a § 2241 petition attacks the petitioner’s conviction or 

sentence. See Porter v. Adams, 244 F.3d 1006, 1007 (9th. Cir. 2001). Pursuant to Rule 

11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, 

the Court declines to issue a certificate of appealability because reasonable jurists would 

not find the Court’s procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 

484 (2000). 

 Dated this 3rd day of May, 2018. 

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