REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action was filed by the Petitioner, pro se, pursuant to 28 U.S.c. § 2241. Petitioner, a federal prisoner serving his sentence at the Federal Correctional Institution (FCI) located in Estill, South Carolina, asserts that he is "actually innocent" of the money laundering charges on which he was convicted because of subsequent changes in the Fourth Circuit Court of Appeals' application in United States v. Cloud, 680 F.3d 398 (4th Cir. 2012) of the United States Supreme Court's plurality opinion in United States v. Santos, 553 U.S. 507 (2008). See Petition, p. 2 ¶ 9.

The Respondent filed a Response in Opposition to the Petition and a Motion for Summary Judgment on March 7, 2014. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on March 10, 2014, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to provide an adequate response, his Petition could be dismissed. The Petitioner thereafter filed a response in opposition to Respondent's motion on April 3, 2014, and a supplement on April 4, 2014. This matter is now before the Court for disposition.1

Background

McLean v. Holland, No. 11-124, 2012 WL 5878681 (E.D.Ky. Nov. 21, 2012).

On November 22, 2011, Petitioner filed a § 2241 Petition in the United States District Court for the Eastern District of Kentucky (where he was then serving his sentence), asserting many of the same claims denied in his original § 2255 Motion, including that he was "actually innocent" of the money laundering conduct charge based on the "merger" problem in Santos. Petitioner further argued that his § 2241 Petition was not barred as a successive § 2255 motion which should have been filed in the court of original jurisdiction — because it met the narrow "safety valve" exception in § 2255(e), which permits a prisoner to challenge the legality of his conviction where § 2255 is inadequate or ineffective to test the legality of his detention. According to that § 2241 Petition, changes in the substantive law of money laundering since Santos "decriminalized" the conduct alleged, citing United States v. Halstead, 634 F.3d 270, 274-275 (4th Cir. 2011)[holding that the Supreme Court's ruling in Santos was substantive and may be applied retroactively on collateral review and not just in cases involving illegal gambling]. Petitioner further argued that §2255 was inadequate to address his claim because, while Santos created a substantive change in the law3, it did not create a new constitutional right as required to file a successive petition under § 2255 — thus availing him of the savings clause in § 2255(e).

The Kentucky district court rejected Petitioner's § 2241 petition, finding that it did not meet the narrow exception in § 2255(e) because his claims therein could have been raised at trial, on direct appeal, or in his initial § 2255 proceedings. McLean v. Holland, 2012 WL 5878681 at *3. In particular, the Kentucky court noted that the court in North Carolina allowed Petitioner to amend his § 2255 motion after Santos was decided. Id. at *4. The court held, among other findings, that,

Id. at *4 (citing Smith v. Snyder, 22 Fed.Appx. 552, 553 (6th Cir. 2001)[A federal court in a post-conviction proceeding may rely on the factual conclusions made by an appellate court in the same case.]

Petitioner appealed the Kentucky district court's ruling dismissing his first § 2241 petition to the Sixth Circuit Court of Appeals. McLean v. Holland, No. 12-6526 (6th Cir. Sept. 23, 2013). In his brief filed with the Sixth Circuit, Petitioner argued (1) that the Kentucky court erred in finding that his First § 2241 petition did not meet the criteria of the § 2255(e) savings clause and (2) that the trial court In North Carolina had erred in narrowly applying Santos to only illegal gambling cases, whereas the Fourth Circuit's recent opinion in United States v. Cloud, 680 F.3d at 409, reversed substantive promotional money laundering counts in a mortgage flipping scheme. See Motion in Support of Appeal, Document No. 9, pp. 1-2 (filed December 20, 2012 in 6th Circuit Court of Appeals Case No. 12-6526).

On September 23, 2013, the Sixth Circuit issued its order affirming the Kentucky court's dismissal of Petitioner's first § 2241 petition. McLean v. Holland, No. 12-6526 (6th Cir. Sept. 23, 2013).4 With respect to Petitioner's Santos claims, the Sixth Circuit held that he failed to meet the burden required to show that § 2255 was an inadequate or ineffective remedy. McLean v. Holland, No. 12-6526, pp. 4-5 (6th Cir. Sept. 23, 2013). First, the Sixth Circuit noted that Petitioner was allowed to amend his § 2255 claim to raise the same Santos claim as in his § 2241 petition. McLean v. Holland, No. 12-6526, p. 4 (6th Cir. Sept. 23, 2013). Second, it held that Petitioner "cannot establish his factual innocence based on Santos because, as the district court [in North Carolina] properly determined when it denied his prior § 2255 motion, his money laundering convictions were proper — even in light of Santos — because Petitioner had used the proceeds from his fraudulent mortgage scheme to engage in new criminal scheme and for his own personal expenditures". McLean v. Holland, No. 12-6526, pp. 4-5 (6th Cir. Sept. 23, 2013).

On November 6, 2013, less than two months after the Sixth Circuit filed its mandate dismissing Petitioner's first § 2241 petition, Petitioner filed the instant petition pursuant to § 2241, this time naming the Warden of FCI Estill in the District of South Carolina as the respondent. McLean v. Warden, No. 9:13-3022-MGL-BM, Court Docket No. 1. This second § 2241 petition raises essentially the same Santos claims presented in his first § 2241 petition and in his appeal to the Sixth Circuit.

Discussion

Federal Courts are charged with liberally construing pleadings filed by a pro se litigant to allow the development ofa potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). However, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the exhibits and arguments presented, the undersigned finds and concludes that the Respondent is entitled to judgment in this case, and that this Petition should therefore be dismissed.

Review of successive habeas petitions is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which became effective on April 24, 2006. 28 U.S.C. § 2244(a)[Part of the AEDPA] provides that:

Applicable case law holds that § 2244(a) bars successive petitions under § 2241 directed to the same issue. Leger v. Cruz, No. 13-372, 2014 WL 526335 at *4 (D.S.C. Feb. 7, 2014)[adopting recommendation for dismissal where "issues involved in the petition sub judice have been, or could have been, addressed by this court in Petitioner's previously-filed § 2241 action]; Bakenhus v. Rivera, No. 08-2282, 2009 WL 559925 at *1 (D.S.C. Mar. 3, 2009) [finding the petition was successive because the claim had previously been raised and adjudicated on the merits by a United States District Court]; Gates v. Stansberry, No. 07-1212, 2008 WL 2165998, at *3-4 (E.D.Va. May 23, 2008); see also Chambers v. United States, 106 F.3d 472, 475 (2th Cir. 1997); Simon v. United States, 359 F.3d 139, 143, n. 7 (2nd Cir. 2004); Valona v. United States, 138 F.3d 693,695 (7th Cir. 1998); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000); Jackson v. Morris, 8 Fed. Appx. 890, 892 (10th Cir. 2001) [Habeas petition raising issues that were expressly rejected on a prior petition was successive and those issues would not be considered, even though petitioner styled his arguments to raise different aspects of the issues]. Further, even prior to enactment of the AEDPA, the applicable case law held that where a petitioner had filed a previous § 2241 petition which was dismissed on the merits, § 2244(a) barred a second § 2241 habeas petition. Gates, 2008 WL 2165998, at *4; see also George v. Perrill, 62 F.3d 333, 334-335 (10th Cir. 1995); Glumb v. Honstead, 891 F.2d 872,873 (11th Cir. 1990); Poyner v. United States Parole Comm'n, 878 F.2d275, 277 (9th Cir. 1989); Sacco v. United States Parole Comm'n, 639 F.2d 441,442-443 (8th Cir. 1981).

Petitioner does not dispute that he raised his arguments with respect to the changes in law based on the holding in Santos in his prior § 2255 and first § 2241 petitions. Rather, Petitioner argues that he is entitled to bring this Petition based on the Fourth Circuit's holding in United States v. Cloud. However, the Fourth Circuit issued its decision in Cloud on May 31, 2012, while Petitioner's first § 2241 Petition was pending, and prior to the Kentucky District Court's decision on Petitioner's First § 2241 Petition on November 12, 2012, Petitioner concedes that he had directed that court's attention to the Cloud decision. See Motion in Support of Appeal, Document No.9, p. 1 (filed December 20, 2012 in 6th Circuit Court of Appeals Case No. 12-6526) ["On 6/16/12 and 08129112, Petitioner-Appellant filed a memorandum in support of his § 2241 motion to add a recent case law issued by the Fourth Circuit, which is very similar to Petitioner-Appellant's case (see attachment "A", memorandum and case law United States v. Cloud, 4th. Circuit, No. 10-4057, 05/31/12)."]. Further, in Petitioner's appeal to the Sixth Circuit in his first § 2241 Petition, he not only supported his arguments by citing to the Cloud decision, but it was also the only copy of a decision that he attached to his brief. See Motion in Support of Appeal, Document No.9, pp. 1,4 & Attachment A (filed December 20, 2012 in 6th Circuit Court of Appeals Case No. 12-6526). The Sixth Circuit subsequently denied Petitioner's appeal referencing Petitioner's arguments regarding the decisions in Santos and Cloud.

Additionally, to the extent Petitioner is trying to raise some type of ends-of-justice exception arguing that he is factually innocent, that claim has also already been considered and rejected. McLean v. Holland, No. 12-6526, pp. 4-5 (6th Cir. Sept. 23, 2013); see also McLean v. Holland, 2012 WL 5878681 at *4; McLean v. United States, 2011 WL 148313. The ends-of-justice exception would not apply to Petitioner where some of the proceeds at issue had been used for his personal expenses and purchases; thus, Petitioner could not make the required colorable showing of factual innocence under Santos and/or Cloud. Winger v. Carnivajal, No. 11-56, 2012 WL 2936433 at *5 (E.D.Tex. June 18, 2012) ["The use of part of the proceeds to buy a personal residence clearly establishes that the money laundering activity involved profits from the fraudulent scheme."](citing United States v. Lyttle, 460 Fed.Appx. 3 at *5 (2d Cir. Feb. 1, 2012)[payments of personal charge card and purchase of home furnishings from profits supported charges), adopted by, 2012 WL 2936195 (E.D.Tex. July 18, 2012); United States v. Persuad, 411 Fed.Appx. 431,434 (2d Cir. 2011)[profits used to purchase personal items such as a car or a home supported charges]; Jackson v. Roy, No. 09-77, 2011 WL 6217962 at *6 (E.D.Tex. Oct. 21, 2011)[some of the profits were used for petitioner's personal benefit supporting charges], adopted by, 2011 WL 6217281 (E.D.Tex. Dec. 14, 2011). Therefore, Petitioner's actual innocent claim based on Santos and Cloud has already been considered and rejected.

Accordingly, because the habeas claims raised in the instant petition were raised in Petitioner's previous § 2241 Petition5, which was adjudicated on the merits by a United States District Court and a United States Circuit Court, this Petition is a successive petition for writ of habeas corpus barred by § 2244(a), and should be dismissed. Cf., Peagler v. Yancey, No. 05-2921, 2006 WL 2434037 (D.S.C. Aug. 21, 2006); Ray v. Simon, No. 07-1143, 2008 WL 5412067 (D.S.C. Dec. 24, 2008); see also Singletary v. Dewalt, No. 04-623, 2005 WL 1162940 (E.D.Va. 2005).

Conclusion

Based on the foregoing, it is recommended that the Respondent's motion to deny Petitioner's habeas petition be granted, and that this Petition be dismissed.

ORDER

Before: GRIFFIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*

James E. McLean, a pro se federal prisoner, appeals from a district court judgment dismissing his habeas corpus petition filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Federal Rule of Appellate 34(a)(2)(C). Upon examination, we unanimously agree that oral argument is not needed. Fed. R. App. P. 34(a).

In 2002, a jury in the United States District Court for the Western District of North Carolina convicted McLean of all offenses listed in a sixty-six-count indictment charging him with, among other things, making false statements, in violation of 18 U.S.C. § 1001; making false entries on monthly status reports required by HUD, in violation of 18 U.S.C. § 1006; making and passing false mortgage notes to influence HUD, in violation of 18 U.S.C. § 1010; bank fraud, in violation of 18 U.S.C. § 1344; money laundering, in violation of 18 U.S.C. § 1956; and conspiracy to commit the above-mentioned substantive offenses. The district court sentenced McLean to a total of252 months of imprisonment and ordered him to pay approximately twenty-four million dollars in restitution. The Fourth Circuit Court of Appeals affinned McLean's convictions, but remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v. McLean, 131 F. App'x 34 (4th Cir. 2005). On remand, the district court re-imposed the same sentence. The Fourth Circuit affinned. United States v. McLean, 192 F. App'x 234 (4th Cir. 2006).

In 2007, McLean filed a 28 U.S.C. § 2255 motion to vacate his sentence. After, the Supreme Court issued its opinion in United States v. Santos, 553 U.S. 507 (2008), holding that "proceeds," as used in 18 U.S.C. § 1956, generally means "profits" and not "gross receipts," the district court allowed McLean to amend his § 2255 motion and add a claim that counsel was ineffective for failing to argue that his money-laundering conviction was invalid in light of Santos. The district court denied McLean's § 2255 motion, concluding, in part, that his Santos claim lacked merit. See McLean v. United States, Nos. 3:07cv331, 3:02cr156-1, 2011 WL 148313, at *26 (W.D.N.C. Jan. 18, 2011). The Fourth Circuit Court of Appeals denied McLean's application for a certificate of appealability.

In November 2011, McLean filed the instant § 2241 habeas petition, arguing that: (1) his convictions for both the numerous substantive offenses and for conspiring to commit those offenses are invalid, in light of Santos; (2) he is actually innocent of the money-laundering offense because, pursuant to Santos, the tenn proceeds means "profits" rather than "receipts," and his conviction was based on the gross receipts of his criminal enterprise; (3) there was insufficient evidence to support his bank fraud convictions; (4) there was insufficient evidence to support his conviction for making false statements; and (5) the district court erred when it sentenced him based on the version of the United States Sentencing Guidelines in effect at the time of his offense rather than the version in effect at the time of his sentencing. In the memoranda in support, he argued that the Fourth Circuit's opinion in United States v. Cloud, 680 F.3d 396 (4th Cir. 2012), supports his claim that his convictions are invalid in light of Santos. Finally, McLean argued that § 2255 is inadequate to challenge his convictions because Santos does not constitute a new rule of constitutional law as is required to file a successive § 2255 motion.

The district court denied McLean's petition, concluding that his claims were not cognizable in a § 2241 proceeding because they challenged his conviction and the imposition of his sentence and he failed to establish that § 2255 was inadequate or ineffective. The district court determined that: (1) McLean's first claim was not based on Santos, but was merely a reiteration of the "duplicity" claim — rejected in the prior § 2255 proceedings — wherein he argued that his convictions for both committing substantive offenses and for conspiring to commit those offenses were improper; (2) McLean did not establish that he was actually innocent of money laundering, in light of the holding in Santos, because the claim had been rejected in the prior § 2255 proceedings; and (3) McLean's third, fourth, and fifth claims had been rejected in his prior § 2255 motion.

McLean has filed a timely appeal, arguing that the district court erred when it concluded that: (1) he did not show that § 2255 was inadequate to challenge his convictions; (2) his money-laundering conviction is valid under Santos; and (3) he did not previously assert a direct challenge to his convictions based on Santos but merely relied on Santos to support his ineffective assistance claim; and (4) he had used proceeds from the scheme to engage in new criminal activity and to pay personal expenses based on uncharged conduct.

We review de novo the denial of § 2241 relief, Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006); Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999), but review the district court's factual determinations for clear error. Martin v. Perez, 319 F.3d 799,802 (6th Cir. 2003).

The district court properly denied McLean's § 2241 petition. As a general rule, a petitioner challenging the legality of his conviction or sentence must bring his claim under § 2255 in the sentencing court, while a petitioner challenging the execution or manner in which the sentence is served may bring a claim under § 2241 in the court having jurisdiction over the prisoner's custodian. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); Charles, 180 F.3d at 755-56. However, a federal prisoner may challenge his conviction and the imposition of a sentence under § 2241, instead of § 2255, ifhe is able to establish that his remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); United States v. Hayman, 342 U.S. 205, 223 (1952); Charles, 180 F.3d at 755-56. To demonstrate inadequacy or ineffectiveness, the petitioner must establish that he is factually innocent. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012). Actual innocence is defined as "factual innocence, not mere legal insufficiency." Souter v. Jones, 395 F.3d 577,590 (6th Cir. 2005)(quoting Bousley v. United States, 523 U.S. 614,623 (1998». Prisoners have satisfied this burden by showing that there has been an intervening change in the law that establishes their actual innocence. See Peterman, 249 F.3d at 461-62; Charles, 180 F.3d at 757.

McLean is clearly challenging his convictions and the imposition of his sentence, but he has not met his burden to prove that his § 2255 remedy is inadequate or ineffective. The remedy under § 2255 is not rendered inadequate or ineffective simply because the petitioner has already been denied relief under § 2255, the petitioner has been denied permission to file a second or successive motion to vacate, the petitioner is procedurally barred from pursuing relief under § 2255, or the petitioner has allowed the one-year statute oflimitations to expire. See Charles, 180 F.3d at 756-58. Therefore, McLean's first issue is meritless. In addition, McLean's claims numbered 3, 4, and 5 have already been rejected in his original § 2255 proceedings.

To the extent that McLean's second claim is based on Santos, he has not shown that § 2255 is "inadequate or ineffective to test the legality of his detention." Instead, he is attempting to raise a claim that he could have raised previously because his current Santos claim was available to him during the prior § 2255 proceedings. Indeed, the district court allowed McLean to amend his § 2255 motion based on Santos, but instead of challenging the validity of his convictions in light of Santos, McLean asserted a claim that counsel was ineffective for failing to argue that his money-laundering conviction was invalid in light of Santos. However, § 2255 is not an inadequate remedy where the petitioner simply did not raise the alleged error in a prior § 2255 petition and is now barred from doing so or because § 2255 relief has already been denied. See Charles, 180 F.3d at 756. Finally, McLean cannot establish his factual innocence based on Santos because, as the district court properly determined when it denied his prior § 2255 motion, his money-laundering convictions were proper — even in light of Santos — because McLean had used the proceeds from his fraudulent mortgage scheme to engage in new criminal schemes and for his own personal expenditures. See McLean, 2011 WL 148313, at *26.

Accordingly, we affirm the district court's judgment. Fed. R. App. P. 34(a)(2)(C).