United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
28 U.S.C. § 2241 petition, federal prisoner David
Poindexter argues that the usual habeas remedies provided in
28 U.S.C. § 2255 are “inadequate or ineffective to
test the legality of his detention.” Santillana v.
Upton, 846 F.3d 779, 782 (5th Cir. 2017) (quotation
marks and citation omitted). Accordingly, he bears the burden
to demonstrate that:
(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.
Id. (quotation marks, citation, and brackets
petition arises out of Elonis v. United States, 135
S.Ct. 2001 (2015). In that case, the Supreme Court held that
the defendant's convictions under 18 U.S.C. §
875(c)-which criminalizes threats to kidnap-could not stand
because the government had not shown that the defendant
intended his communications to be threats.
“Although there are exceptions, ” the Court
wrote, “the general rule is that a guilty mind is a
necessary element in the indictment and proof of every crime.
We therefore generally interpret criminal statutes to include
broadly applicable scienter requirements, even where the
statute by its terms does not contain them.”
Id. At 2009 (quotation marks, citations, and
was not convicted of threatening to kidnap someone; rather,
he was convicted of killing a person while avoiding
apprehension during a bank robbery, in violation of 18 U.S.C.
§ 2113(e). He nevertheless contends that Elonis
undermines his conviction because the government did not
establish that he intended to kill the driver he hit while
fleeing the bank robbery.
Court has reviewed the well-written briefing and the
applicable law. It seems clear enough that the Supreme
Court's decision in Elonis applies retroactively
to § 875(c) convictions; at least, other courts have
found as much. E.g., Jeffries v. United
States, No. 3:10-CR-100, 2018 WL 910669, at *3 (E.D.
Tenn. Feb. 15, 2018) (concluding, in a § 2255
proceeding, that “Elonis must have retroactive
however, has not shown that Elonis applies
retroactively to his § 2113(e) conviction. On its face,
Elonis applies only to § 875(c) and does not
extend to other statutes. E.g., Shah v. United
States, No. 5:12-172, 2016 WL 6762748, at *5 (S.D. W.Va.
Oct. 19, 2016) (“Although the Supreme Court clearly
held that a defendant's mental state was an element of
Section 875(c), the Supreme Court did not recognize a new
right concerning a conviction under Section 875(b).”),
report and recommendation adopted, 2017 WL 3168425
(S.D. W.Va. July 26, 2017); see also United States v.
Hammond, 354 F.Supp.3d 28, 54 (D.D.C 2018)
(“Elonis's reasoning is explicitly limited
to statutes that criminalize pure threats.”).
contends that the principle the Supreme Court reinforced in
Elonis-that “criminal liability generally does
not turn solely on the results of an act without considering
the defendant's mental state”-should apply
to his § 2113(e) conviction. The argument has some
persuasive force. Even the court that affirmed
Poindexter's § 2113(e) conviction has criticized the
reasoning it used in his case. See United States v.
Parks, 583 F.3d 923, 925 (6th Cir. 2009) (noting an
absurd consequence of reading § 2113(e) without a mens
rea requirement: “a person would seemingly violate
§ 2113(e) if he jovially slapped his accomplice on the
back to congratulate him on a job well done and thereby
inadvertently caused food to lodge in his windpipe, resulting
in his death.”). But see United States v.
Wilson, 880 F.3d 80, 86 (3d Cir. 2018)
(“Wilson's attempt to extend Elonis's
reasoning to § 2113(a) is misguided.”). The
problem, though, is that there is not yet a decision
establishing that Elonis applies to § 2113(e)
convictions. Poindexter's essentially normative arguments
must await further developments in the law.
these reasons, this § 2241 petition is dismissed for
lack of jurisdiction.