Humes (PS) v. Florence FCI Warden

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 25-cv-00044-CNS
DERON MICHAEL HUMES, II,
Petitioner,
v.
FLORENCE FCI WARDEN,
Respondent.
ORDER
This matter is before the Court on the Amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 5 (the Application) filed pro se by
Petitioner, Deron Michael Humes, II, on January 24, 2025.1 Respondent filed a Response
to Order to Show Cause. ECF No. 23. Mr. Humes has not filed a reply despite being given
an opportunity to do so.
The Court must construe the Application liberally because Mr. Humes is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per
curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should
1 Petitioner’s amended application also states, “[p]lease see original filing.” ECF No. 5 at 2. As Petitioner is
proceeding pro se, the Court construes this statement to be a reference to Petitioner’s first Amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, see ECF No. 1, and so has also
reviewed the first petition in connection with this order. In his first petition, Petitioner requests the same
relief for the same reasons articulated in the amended Application. See id. at 6 (stating that Petitioner is
seeking “immediate release” because he is “being held on 18 U.S.C. § 922(g)(1),” which “many courts have
ruled . . . is unconstitutional”).
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not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
discussed below, the Court concludes the Application should be denied without prejudice.
I. 	SUMMARY FOR PRO SE PETITIONER
You filed an application under 28 U.S.C. § 2241 asking that the Court order your
immediate release from prison because, you argue, the statute under which you were
convicted, 18 U.S.C. § 922(g)(1), is unconstitutional. As explained in further detail below,
your request is denied for two reasons.
First, because you are a federal prisoner, the proper way to challenge the
constitutionality of your sentence under 18 U.S.C. § 922(g)(1) is to seek relief under 28
U.S.C. § 2255 from the Court that imposed your sentence. However, because your motion
does not indicate (i) whether you have already attempted to seek relief under § 2255 from
the court that sentenced you (the United States District Court for the Northern District of
Iowa), or (ii) whether your attempts to do so, if any, were inadequate or ineffective, the
Court does not have jurisdiction to consider your request for relief under 28 U.S.C. § 2241.
Second, even if the Court had jurisdiction to consider your request under § 2241, it would
be unable to grant such relief because, under Tenth Circuit law, convictions and
sentences imposed under 18 U.S.C. § 922(g)(1) on non-violent offenders are not
unconstitutional.
II. 	BACKGROUND
Mr. Humes is a convicted and sentenced federal prisoner in the custody of the
Federal 	Bureau 	of 	Prisons 	(BOP). 	According 	to 	BOP 	records 	attached 	to 	the
Respondent’s Response, Mr. Humes initially entered BOP custody in August 2024 and
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was housed at the Federal Correctional Institution in Florence, Colorado. On July 17,
2025, Mr. Humes was transferred to the United States Penitentiary in Florence, Colorado,
and then on July 22, 2025, he was moved to the Federal Transfer Center in Oklahoma
City, Oklahoma. ECF No. 23-1 ¶¶ 7–9. The BOP’s inmate locator website indicates that,
as of the date of this order, Mr. Humes is housed at the United States Penitentiary in
Terre Haute, Indiana.2
Mr. Humes’ incarceration stems from his guilty plea to possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8) in the Northern District of Iowa. ECF No.
23-1 at 6–12. On January 29, 2024, the United States District Court for the Northern
District of Iowa sentenced Mr. Humes to 70 months imprisonment. Id.
III. 	DISCUSSION
Through this § 2241 action, Mr. Humes attempts to lodge a collateral attack to the
validity of his conviction under the felon-in-possession statute, 18 U.S.C. § 922(g)(1). ECF
No. 	5 	at 	2. 	Specifically, 	Mr. 	Humes 	contends 	the 	felon-in-possession 	statute 	is
unconstitutional as applied to him pursuant to the Third Circuit’s decision in Range v.
Attorney General United States of America, 124 F.4th 218 (3d Cir. 2024). Id. As relief, he
requests his “immediate release from BOP custody.” Id. at 4. In response, Respondent
contends that the Application should be dismissed without prejudice for failure to assert
a cognizable § 2241 claim. ECF No. 23 at 3-8. The Court agrees.
As an initial matter, the Court must address its jurisdiction over the Application by
2 The BOP’s inmate locator is available at: https://www.bop.gov/inmateloc/.
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deciding whether 28 U.S.C. § 2255 is inadequate or ineffective for testing the legality of
Mr. Humes’ detention. The Court finds that § 2255 is not inadequate or ineffective and
will now discuss why.
The purposes of a petition for a writ of habeas corpus pursuant to § 2241 and a
motion pursuant to § 2255 are distinct and well established. “A petition under 28 U.S.C.
§ 2241 attacks the execution of a sentence rather than its validity,” while a “28 U.S.C. §
2255 petition attacks the legality of detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th
Cir. 1996); see also 28 U.S.C.A. § 2255(A) (“A prisoner in custody under sentence of a
court established by Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution . . . may move the court
which imposed the sentence to vacate, set aside or correct the sentence.”). For federal
prisoners, the “exclusive remedy for testing the validity of a judgment and sentence,
unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.” Johnson v.
Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see 28 U.S.C. § 2255(e). A habeas corpus
petition pursuant to 28 U.S.C. § 2241 “is not an additional, alternative, or supplemental
remedy, to the relief afforded by motion in the sentencing court under § 2255.” Williams
v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam).
To proceed with a § 2241 petition, Mr. Humes bears the burden of demonstrating
that the remedy available pursuant to § 2255 is inadequate or ineffective. Jones v.
Hendrix, 599 U.S. 465, 474 (2023) (“Traditionally, courts have treated the saving clause
[in 28 U.S.C. § 2255(e)] as covering unusual circumstances in which it is impossible or
impracticable for a prisoner to seek relief from the sentencing court.”); see also Prost v.
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Anderson, 636 F.3d 578, 584 (10th Cir. 2011). This burden is not easily satisfied. “Only
in rare instances will § 2255 fail as an adequate or effective remedy to challenge a
conviction or the sentence imposed.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir.
2010); see also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (noting that the
remedy provided by § 2255 is inadequate or ineffective only in “extremely limited
circumstances”). To determine whether the remedy provided by the sentencing court
pursuant to § 2255 is inadequate or ineffective, the Court must consider whether Mr.
Humes’ claim could be raised by § 2255 motion. See Prost, 636 F.3d at 584. “If the
answer is yes, then the petitioner may not resort to the savings clause [in § 2255(e)] and
§ 2241.” Id.
Mr. Humes’ claim challenges the validity of his felon-in-possession conviction. That
is precisely the circumstance under which § 2255 should be utilized. See 28 U.S.C. §
2255(a) (authorizing federal prisoners to move the sentencing court where they are
“claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States”). And nothing in Mr. Humes’
§ 2241 Application suggests that the remedy provided in the sentencing court pursuant
to § 2255 is inadequate or ineffective. Indeed, the Application does not even indicate
whether Mr. Humes has even attempted to seek relief under § 2255. As a result, Mr.
Humes’ § 2241 Application must be dismissed without prejudice for lack of statutory
jurisdiction. See Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013).
Moreover, even if Mr. Humes’ claim was cognizable under § 2241, it fails based on
the recent holding in Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025). In Vincent, the
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Tenth Circuit reaffirmed its previous decision in United States v. McCane, 573 F.3d 1037
(10th Cir. 2009), which held that 18 U.S.C. § 922(g)(1) does not offend the Second
Amendment. Vincent, 127 F.4th at 1264. The Tenth Circuit held that the decision in
McCane remains good law and that 18 U.S.C. § 922(g)(1)—which prohibits felons from
possessing firearms—is not unconstitutional even when applied to nonviolent offenders.
Id. at 1266 (“Under McCane, the Second Amendment doesn’t prevent application of §
922(g)(1) to nonviolent offenders[.]”). Recently, the Tenth Circuit again emphasized that
“at least for now” an argument that 18 U.S.C. § 922(g)(1) is unconstitutional “is foreclosed
by [Tenth Circuit] precedents.” United States v. Becker, No. 24-1331, 2026 WL 643787,
at *5 (10th Cir. Mar. 9, 2026) (discussing Vincent). Thus, Mr. Humes’ claim that § 922(g)(1)
is unconstitutional based on noncontrolling authority is without merit.
IV. 	CONCLUSION
Based on the foregoing, it is hereby ORDERED that the Amended Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 5, is DENIED, and this
case is dismissed without prejudice.3
3 The Court dismisses Mr. Humes’ Application without prejudice to ensure it will not be treated as an initial
§ 2255 motion, effectively barring Mr. Humes from asserting a second or successive § 2255 motion in the
Northern District of Iowa. See Haro-Arteaga v. United States, 199 F.3d 1195, 1196 (10th Cir. 1999)
(providing that motions filed under § 2255 were not considered second or successive where earlier § 2255
motions were dismissed without prejudice and without substantive review).
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DATED this 7th day of April 2026.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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