USA v. Keith Ford

Filing

UNPUBLISHED OPINION FILED. [16-50108 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 04/07/2017 for Appellant Keith Allen Ford; denying motion for summary affirmance filed by Appellee USA [8352192-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8352192-3]; denying as moot motion to proceed IFP filed by Appellant Mr. Keith Allen Ford [8158793-2] [16-50108]

Case: 16-50108

Document: 00513916463

Page: 1

Date Filed: 03/17/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50108
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 17, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KEITH ALLEN FORD,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:91-CR-52-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
In 1992, Keith Allen Ford, federal prisoner # 56108-080, was sentenced
to 360 months in prison for being a felon in possession of a firearm. He has
appealed the denial of his pleading filed in the district court for review of his
sentence, entitled “28 U.S.C. § 2241 Petition For Review Of Unlawful Sentence
Pursuant 18 U.S.C. § 3742(e)(2).” The district court denied Ford’s petition,
concluding that it lacked merit. Ford filed a timely notice of appeal and a

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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motion for leave to proceed in forma pauperis (IFP) on appeal, which the
district court denied.

The Government has filed a motion for summary

affirmance or, in the alternative, a motion for an extension of time to file a
brief.
Although Ford styled his motion as falling under § 2241, it is the essence
of a pro se prisoner’s pleading, rather than the label attached to it, that controls
how that pleading is characterized. United States v. Santora, 711 F.2d 41, 42
n.1 (5th Cir. 1983). As federal courts are courts of limited jurisdiction, Ford
must have statutory authority for the filing of his motion. See Veldhoen v.
United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994).

“Absent

jurisdiction conferred by statute, district courts lack power to consider claims.”
Id.
A § 2241 petition and a § 2255 motion “are distinct mechanisms for
seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000). Section 2255 is the primary mechanism for collaterally attacking a
federal sentence. Id. However, had Ford’s pleading been construed as a § 2255
motion, the district court would have lacked jurisdiction to consider it because
Ford had previously filed a § 2255 motion and this court has not authorized
him to file a successive § 2255 motion. See Hooker v. Sivley, 187 F.3d 680, 68182 (5th Cir. 1999); 28 U.S.C. § 2244(b)(3)(A).
By contrast, § 2241 is the proper procedural vehicle for challenging the
manner in which a sentence is executed. Pack, 218 F.3d at 451. A § 2241
petition that attacks custody resulting from a federally imposed sentence may
be entertained under the savings clause of § 2255 if the petitioner establishes
that the remedy provided under § 2255 is “inadequate or ineffective” to test the
legality of his detention. § 2255(e); see Reyes-Requena v. United States, 243
F.3d 893, 901 (5th Cir. 2001). Ford’s claims were not based on a retroactively

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applicable Supreme Court decision which establishes that he may have been
convicted of a nonexistent offense, and his claims were not foreclosed by circuit
law at the time of his trial, direct appeal, or first § 2255 motion. See ReyesRequena, 243 F.3d at 904. Consequently, Ford’s motion could not have been
construed as a § 2241 petition brought via the savings clause of § 2255. See
Reyes-Requena, 243 F.3d at 904.
Furthermore, while 18 U.S.C. § 3582(c) allows a district court to modify
a sentence under certain narrow circumstances, none were applicable to Ford’s
case, and Ford was precluded from obtaining relief under § 3742, as relief
thereunder is reserved only for direct appeals. See United States v. Early, 27
F.3d 140, 142 (5th Cir. 1994). Finally, Ford’s motion did not qualify as a writ
of coram nobis or audita querela. See United States v. Miller, 599 F.3d 484,
489 (5th Cir. 2010); Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996).
Ford’s pleading was, in essence, an unauthorized motion that the district
court was without jurisdiction to entertain. Early, 27 F.3d at 142; United
States v. Michelletti, 638 F. App’x 402, 403–04 (5th Cir. 2016) (unpublished).
Because Ford has appealed from the denial of an unauthorized pleading, we
AFFIRM the district court’s ruling on the alternative basis that the district
court lacked jurisdiction over the motion. See Early, 27 F.3d at 142. The
Government’s motions are DENIED. Ford’s motion for leave to proceed in
forma pauperis on appeal is DENIED as moot.

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