IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

EYAD ISMOIL, ) Petitioner, ) Civil Action No. 7:22-cv-00530 ) v. ) ) By: Michael F. Urbanski WARDEN STREEVAL, ) Chief United States District Judge Respondent. )

ORDER

Eyad Ismoil, a federal inmate proceeding pro se, filed this action as a petition for writ of habeas corpus under

. The respondent has moved to stay the case pending a decision on a threshold jurisdictional question. ECF No. 7. For the reasons set forth below, the motion to stay is GRANTED. In his petition, Ismoil claims that his conviction under

(c) is no longer valid in light of the Supreme Court’s decision in Borden v. United States,

(2021), which was decided after his direct appeal and first

motion. See Mem. Supp. Pet., ECF No. 1-1, at 2. Ismoil seeks relief under the Fourth Circuit’s decisions in In re Jones,

(4th Cir. 2000), and United States v. Wheeler,

(4th Cir. 2018), which set forth this circuit’s tests for determining whether a petitioner may challenge the validity of his federal conviction or sentence in a § 2241 petition via the “savings clause” of

(e). See

(e) (providing that a court may entertain a § 2241 petition if the petitioner can demonstrate that a § 2255 motion is “inadequate or ineffective to test the legality of his detention”). The respondent asserts that the Department of Justice has consistently taken the position that Jones and Wheeler were “wrongly decided,” in that they “created an overly broad interpretation of § 2255(e).” Mot. to Stay, ECF No. 7, at 1. On November 1, 2022, the Supreme Court heard oral argument in Jones v. Hendrix,

No. 21-857, a case from the Eighth Circuit that addressed whether a “change in case law, combined with the successive-motions bar [in § 2255], makes § 2255’s remedy inadequate or ineffective.” Jones v. Hendrix,

, 686 (8th Cir. 2021). In its decision, the Eighth Circuit recognized that “circuits have split over this question” and that “[m]ost circuits,” including the Fourth Circuit, would allow a petitioner to invoke the savings clause under such circumstances.

at 686–87. After reviewing the statutory text and its precedent, the Eighth

Circuit agreed with the Tenth and Eleventh Circuits that the circumstances presented were insufficient to satisfy the requirements of the savings clause.

at 687–88. Accordingly, the Eighth Circuit affirmed the district court’s decision dismissing the petitioner’s habeas petition under § 2241. Id. at 690. The court agrees with the respondent that the Supreme Court’s decision in Jones will likely resolve the circuit split identified by the Eighth Circuit or otherwise offer guidance as to

the scope of the savings clause. Consequently, the decision will likely impact the resolution of the threshold jurisdictional question presented in this case. Under these circumstances, the court finds that a stay is warranted. See Williams v. Hudgins, No. 20-7870,

, at *1 (4th Cir. Sept. 13, 2022) (order placing case in abeyance pending decision in Jones v. Hendrix); Thompson v. Streeval, No. 7:22-cv-00288 (W.D. Va. July 29, 2022) (order staying § 2241 petition pending decision in Jones v. Hendrix); Spaulding v. Streeval, No. 7:22-

cv-00118 (W.D. Va. June 29, 2022) (same). For these reasons, it is hereby ORDERED that the respondent’s motion to stay, ECF No. 7, is GRANTED, and this matter is STAYED pending the Supreme Court’s decision in v. Hendrix, No. 21-857. It is further ORDERED that the respondent shall file a response to the petition not later than 30 days after the Supreme Court issues its decision. The petitioner shall then have 30 days in which to file any reply. The Clerk is directed to send a copy of this order to the patties. It is so ORDERED.

Entered: November 14, 2022 Digitally signed by Michael F. Urbanski Chief U.S. District Judge Date: 2022.11.14 15:49:02 -05'00' Michael F. Urbanski Chief United States District Judge