USA v. Holmes

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CR-23-56-R
) 	(CIV-25-704-R)
DARION HOLMES, 	)
)
Defendant. 	)
ORDER
Defendant Holmes initiated this action by filing a “Notice of 2241 Motion” in the
United States District Court for the Eastern District of Pennsylvania. The filing requests
that his conviction be vacated because it violates the Second Amendment and a recent
executive order. The Eastern District of Pennsylvania construed the filing as a motion
under 28 U.S.C. § 2255 and transferred to the action to this Court pursuant to 28 U.S.C. §
2255(a).
A petition brought under 28 U.S.C. § 2241 typically “attacks the execution of a
sentence rather than its validity and must be filed in the district where the prisoner is
confined.” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). Mr. Holmes is
not confined in the Western District of Oklahoma and this Court therefore lacks jurisdiction
to consider the motion under § 2241. However, based on the arguments in Mr. Holmes’
filing, the Court intends to construe his filing as a petition seeking habeas relief under 28
U.S.C. § 2255. A petition under § 2255 “attacks the legality of detention…and must be
filed in the district that imposed the sentence.” Bradshaw v. Story, 86 F.3d 164, 166 (10th
Case 5:23-cr-00056-R Document 67 Filed 06/30/25 Page 1 of 2

2
Cir. 1996) (internal citations omitted). Before the Court recharacterizes the motion as one
seeking relief under § 2255, the Court apprises Mr. Holmes of the following:
any subsequent § 2255 motions will be subject to restrictions on second or
successive motions. In particular, pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996, a defendant may not file a second or successive
motion pursuant to § 2255 unless he first applies to the appropriate court of
appeals for an order authorizing the district court to consider the motion. See
28 U.S.C. §§ 2244(b)(3), 2255(h). A second or successive motion under
§ 2255 may be filed in the district court only after the court of appeals
certifies that the motion is based on “(1) newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
United States v. Cole, No. 18-CR-150-JED, 2022 WL 1597831, at *2 (N.D. Okla. May 19,
2022).
On or before July 28, 2025, Mr. Holmes shall file a notice indicating whether he
agrees to have his filing [Doc. No. 66] construed as a motion under 28 U.S.C. § 2255 or
chooses to withdraw it. If a response is not received by July 28, 2025, the Court will
consider the motion withdrawn.
IT IS SO ORDERED this 30 th day of June, 2025.
Case 5:23-cr-00056-R Document 67 Filed 06/30/25 Page 2 of 2