Gregg v. United States

Background

James Allen Gregg filed a petition under 28 U.S.C. § 2241 challenging his conviction or sentence. On January 5, 2022, Magistrate Judge Tony N. Leung issued a report and recommendation that the petition be dismissed without prejudice for lack of jurisdiction. The recommendation stated that Gregg had not shown that the remedy available under 28 U.S.C. § 2255 was inadequate or ineffective under that statute’s “saving clause.”

Gregg objected to the recommendation and later asked the court to hold the case in abeyance while the Supreme Court considered an appeal in Jones v. Hendrix. The court granted the stay because the Supreme Court’s decision could resolve the government’s jurisdictional argument.

Events After the Stay

After the Supreme Court decided Jones on June 22, 2023, the court lifted the stay. The court noted that Gregg had been released, directed the government to provide information about his current mailing address, and gave Gregg a deadline to state whether he still intended to pursue the case. The court warned that it could dismiss the action without prejudice if he did not respond.

The order was mailed to Gregg’s updated address on August 3, 2023. The mail was not returned, and the court received no response from Gregg for more than a month.

Court’s Reasoning

The court explained that Gregg had recognized the Supreme Court’s decision in Jones could determine the outcome of his petition. In Jones, the Supreme Court held that the saving clause does not allow a prisoner to use § 2241 to challenge the validity of a conviction or sentence based on a newly adopted narrowing interpretation of the statute of conviction when circuit precedent had previously foreclosed the claim. The saving clause applies to claims based on newly discovered evidence or a new rule of constitutional law.

The court stated that Gregg’s proposed claim was based on Borden v. United States, which held that an offense requiring only reckless mental conduct cannot qualify as a violent felony under the Armed Career Criminal Act’s elements clause. Considering Gregg’s release, the Jones decision, and Gregg’s awareness that Jones could affect his claim, the court found that his failure to respond suggested that he had abandoned the action. The court relied on Federal Rule of Civil Procedure 41(b), which permits dismissal for failure to prosecute.

Disposition

The action was DISMISSED WITHOUT PREJUDICE for failure to prosecute. The court directed that judgment be entered. This order dismissed the case on the ground that Gregg did not continue prosecuting it; it did not decide the underlying claim on its merits.