McCall v. NFN Mosley
Filing
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MEMORANDUM OPINION Signed by Honorable David C. Bramlette, III on 4/17/2014 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
BONDARY MCCALL, #43827-019
also known as Bondaryl McCall
VERSUS
PETITIONER
CIVIL ACTION NO. 3:13-cv-846-DCB-MTP
BENITA MOSLEY, Warden
RESPONDENT
MEMORANDUM OPINION
This matter is before the Court, sua sponte, for consideration of dismissal. On October 4,
2013, pro se Petitioner McCall filed this Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241. McCall is presently incarcerated at the Federal Correctional Complex in Yazoo City,
Mississippi, and attacks his federal conviction and sentence of imprisonment. Upon review of
the Petition [1], Responses [12, 15, 19], and entire Court record, along with the applicable case
law, the Court has reached the following conclusions.
I. Background
McCall states that in 1994, he was convicted of conspiracy to distribute cocaine1 in the
Southern District of Ohio and sentenced to serve 365 months imprisonment. Pet. [1] at 1. His
conviction and sentence were affirmed by the Sixth Circuit. United States v. McCall, No. 953015, 1996 WL 77437 (6th Cir. Feb. 20, 1996). The denial of McCall’s first motion to vacate
his sentence pursuant to 28 U.S.C. § 2255 was affirmed by the Sixth Circuit on October 19,
2000. McCall v. United States, No. 99-3524, 2000 WL 1597853 (6th Cir. Oct. 19, 2000).
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According to the Sixth Circuit, McCall was named in 18 counts of a 35-count superseding
indictment, and a jury convicted him of 15 counts. See McCall v. United States, No. 99-3524, 2000 WL
1597853, *1 (6th Cir. Oct. 19, 2000).
In the instant petition, McCall asserts three grounds for habeas relief. First he claims that
his conviction and sentence are invalid and void based on the United States Supreme Court’s
holding in Alleyne v. United States, 133 S.Ct. 2151 (2013).2 Secondly, he states “breach of
contract” based on “misapplication of . . . policies, rules, codes, directives and regulations
against petitioner.” Pet. [1] at 6. As the third ground for relief, McCall states “breach of current
treaty of peace with the United States pursuant to U.S. Senate and House passage of public
policy called ‘The [U]niting and Strengthening of America Act,’” which he states is a treaty
prohibiting the suspension of the “Writ.” Id. at 7. As relief, McCall has asked for an emergency
hearing and his immediate release from incarceration. Id. at 11, 13, 14.
II. Analysis
A federal inmate may attack the manner in which his sentence is being carried out or the
prison authorities’ determination of its duration in a habeas petition pursuant to 28 U.S.C.
§ 2241, filed in the same district where the prisoner is incarcerated. See Pack v. Yusuff, 218 F.3d
448, 451 (5th Cir. 2000). By contrast, a federal inmate’s challenge to the validity of his
conviction or sentence should be pursued in a motion pursuant to 28 U.S.C. § 2255, filed in the
sentencing court. Ojo v. INS, 106 F.3d 680, 683 (5th Cir.1997).
McCall’s claims challenge the validity of his conviction and sentence, and therefore are
not properly pursued in a § 2241 petition. Pack, 218 F.3d at 452. However, pursuant to a
limited exception, referred to as the “savings clause,” a federal court may consider a § 2241
petition that challenges a federally imposed sentence when the petitioner establishes that the
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Alleyne explicitly relied on Apprendi v. New Jersey, 530 U.S. 466 (2000) and held that,
generally, any fact that increases the mandatory minimum of a sentence must be found by a jury. 133
S.Ct. at 2155.
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remedy under
§ 2255 is inadequate or ineffective. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001). In Reyes-Requena, the Fifth Circuit set forth a two-part test to determine if a claim meets
the stringent “inadequate or ineffective” requirement entitling the inmate to proceed under the
savings clause. 243 F.3d at 904. To satisfy the test, an inmate “must show that (1) his claims are
based on a retroactively applicable Supreme Court decision which establishes that he may have
been convicted of a nonexistent offense, and (2) his claims were foreclosed by circuit law at the
time when the claims should have been raised in his trial, appeal, or first § 2255 motion.”
Wesson v. U.S. Penitentiary, 305 F.3d 343, 347 (5th Cir. 2002) (citing Reyes-Requena v. U.S.,
243 F.3d at 904).
Since McCall attacks the validity of his conviction and sentence in the instant case, he
cannot pursue these claims in a § 2241 petition unless he can demonstrate that he is entitled to
relief under the savings clause. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.2001)(“[T]he
burden of coming forward with evidence to show the inadequacy or ineffectiveness of a motion
under § 2255 rests squarely on the petitioner.”). McCall was directed, on three separate
occasions, to state if he is claiming that a Motion pursuant to § 2255 is an inadequate or
ineffective means of attacking his current confinement and if so, to state grounds in support of
this assertion. See Orders [9, 14, 18]. In the most specific Response [12], he states that his
“claims are proper in that nature of 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they
concern the manner, location or conditions of the execution of petitioner’s sentence and the
facts.” Resp. [12] at 1. In addition, McCall alludes to various conditions of confinement
complaints as impediments to him fully responding to Court Orders. See Resp. [15]; Affidavit
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[16]. The Court has applied a liberal construction to the pleadings and finds that McCall has had
adequate opportunity to present his habeas claims in the 67 pages of pleadings he has filed
during the six-month pendency of this case.3 At best, McCall contends that he meets the
requirements to proceed under the savings clause because (1) the Supreme Court decision he
relies on for relief was handed down in 2013; (2) he has already been denied relief under §
2255; and (3) future attempts would be barred as successive petitions.
The Fifth Circuit recently rejected a federal inmate’s attempt to proceed under the
savings clause with claims based on Alleyne. See Griffin v. Longley, No. 13-60105, 2013 WL
6234581 (5th Cir. Dec. 3, 2013) (affirming dismissal of § 2241 petition by custodial court). The
Court stated that Alleyne “do[es] not support a holding that Griffin’s claim is based on a
retroactively applicable Supreme Court opinion indicating that he was convicted [in 1999] of a
nonexistent offense and that his claim was foreclosed when it otherwise should have been
raised.” Id. at *1 (citing Reyes-Requena, 243 F. 3d at 904). Likewise, this Court finds that
McCall’s claim based on Alleyne does not satisfy the factors set forth in Reyes-Requena.
Furthermore, the law is clear that “a prior unsuccessful § 2255 motion, or the inability to
meet AEDPA’s ‘second or successive’ requirement, does not make § 2255 inadequate or
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The Court finds that to the extent McCall is attempting to assert conditions of confinement
claims, they are not properly pursued in this habeas petition. A Bivens complaint is the proper vehicle for
an inmate to pursue a civil rights complaint against federal actors. See Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Rather than liberally construe the possible conditions of confinement
claims asserted in this case as a separate civil rights case, the conditions claims will be dismissed without
prejudice. See Lineberry v. U.S., 380 F. App’x 452, 453 (5th Cir. 2010)(affirming district court’s
dismissal of federal inmate’s conditions of confinement claims asserted in § 2241 habeas case). The
Court does not reach a determination of the viability of any possible conditions of confinement claims;
nonetheless, the Clerk is directed to mail McCall a packet of Bivens complaint forms for prisoners. The
decision whether or not to pursue these claims in a separate civil rights action rest squarely with McCall.
He is advised that the filing fee for a civil rights complaint is $350.00 or $400.00, and governed by
provisions of the Prison Litigation Reform Act that are not applicable to the $5.00 habeas filing fee.
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ineffective.” Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000); see also Pack, 218 F.3d at
452-53 (finding an inmate’s failure to succeed in a section 2255 motion does not establish the
inadequacy or ineffectiveness of the section 2255 remedy). As such, the Court concludes that
McCall does not meet the requirements to proceed with his claims under the savings clause.
III. Conclusion
Since McCall’s claims do not meet the stringent requirements of the savings clause, he
will not be allowed to proceed with this action for habeas corpus relief pursuant to § 2241.
Accordingly, this Petition for habeas relief is dismissed as frivolous. Ojo, 106 F.3d at
683 (finding inmate’s § 2241 petition asserting claims properly pursued under § 2255 to be
“thoroughly frivolous”). To the extent the Petition can be construed as a § 2255 motion it is
dismissed for lack of jurisdiction. Pack, 218 F.3d at 454. Finally, to the extent any possible
conditions of confinement claims are presented in this habeas petition they are dismissed without
prejudice.
A Final Judgment in accordance with this Memorandum Opinion shall be issued.
SO ORDERED, this the 17th
day of April, 2014.
s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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