Harrison v. United States of America
Filing
6
MEMORANDUM OPINION dismissing 1 petition for habeas relief pursuant to 2241 as frivolous. To the extent the petition can be construed as a 2255 motion, it shall be dismissed for lack of jurisdiction. A final judgment will be entered in accordance with this memorandum opinion. Signed by District Judge Tom S. Lee on 9/16/14 (copy mailed to plaintiff at #53595-018, FCC, P.O. Box 5000, Yazoo City, MS 39194) (LWE)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHARLES HARRISON, #53595-018
VERSUS
PETITIONER
CIVIL ACTION NO.
3:14-cv-530-TSL-JCG
BONITA S. MOSLEY, WARDEN1
RESPONDENT
MEMORANDUM OPINION
This matter is before the court, sua sponte, for
consideration of dismissal.
Pro Se petitioner Charles Harrison
filed this petition for writ of habeas corpus under 28 U.S.C. §
2241.
He is presently incarcerated at the Federal Correctional
Complex in Yazoo City, Mississippi.
Upon review of the petition
[1] and response [4], along with the applicable case law, the
court has reached the following conclusions.
I.
Background
On July 9, 2014, Harrison filed the instant habeas petition
challenging his sentence entered by the United States District
Court for the Middle District of Florida.
Harrison pled guilty
to conspiracy to distribute 50 grams or more of methamphetamine.
United States v. Harrison, No. 8:10-cr-338 (M.D. Fla. Apr. 4,
2011).
On April 4, 2011, he was sentenced to 240 months in the
custody of the Federal Bureau of Prisons, followed by 120 months
of supervised release.
Id.
Harrison claims that he is entitled to habeas relief because
1
Warden Bonita S. Mosley replaces the United States as the named
respondent pursuant to Harrison’s response [4].
the sentencing court violated his constitutional rights when his
sentence was enhanced based on a prior state court drug
conviction.
Specifically, he maintains that his prior drug
conviction from the State of Florida does not qualify as a felony
drug offense under federal law.2
Harrison argues that his
mandatory minimum sentence should only be 10 years and not the 20
years applicable with the enhancement.
He asks the court to
vacate his sentence and re-sentence him without the enhancement.
See Resp. [4] at 3.
II.
Analysis
Harrison claims his sentence was improperly enhanced because
his prior drug conviction does not constitute a felony drug
offense under federal law.
He relies on Carachuri - Rosendo v.
Holder, 560 U.S. 563 (2010) and Lopez v. Gonzalez, 549 U.S. 47
(2006), as support for his claims.3
Both of these cases were
decided prior to the imposition of his federal sentence.
A petitioner may attack the manner in which his sentence is
being executed in the district court with jurisdiction over his
custodian, pursuant to 28 U.S.C. § 2241.
United States v. Cleto,
2
Although Harrison also states that he is actually innocent of
the prior drug conviction that was used to enhance his federal
sentence, he clarifies that he is challenging his federal sentence in
this petition and not the validity of the prior state court
conviction. See Resp. [4] at 1.
3
In both of these cases the court considered whether certain drug
convictions were aggravated felonies for the purpose of removal
proceedings.
2
956 F.2d 83, 84 (5th Cir. 1992).
By contrast, a motion filed
pursuant to 28 U.S.C. § 2255 “provides the primary means of
collateral attack on a federal sentence.”
F.3d 448, 451 (5th Cir. 2000).
Pack v. Yusuff, 218
The proper vehicle for
challenging errors that “occurred at or prior to sentencing” is a
motion pursuant to § 2255.
(5th Cir. 1990).
Cox v. Warden, 911 F.2d 1111, 1113
Harrison’s claim that his sentence was
improperly enhanced does not challenge the execution of his
federal sentence but instead attacks the validity of his federal
sentence.
Since the alleged constitutional violation regarding
the enhancement to his sentence “occurred at or prior to
sentencing,” it is not properly pursued in a § 2241 petition.
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 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)
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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).
Harrison bears the burden of demonstrating that the § 2255 remedy
is inadequate or ineffective to test the legality of his
detention.
Jeffers v. Chandler, 253 F.3d 827, 830 (5th
Cir.2001).
Harrison contends that the § 2255 remedy is inadequate or
ineffective because he is barred from filing a § 2255 motion by
the statute of limitations.
Resp. [4] at 4.
However, a
petitioner’s inability to file a § 2255 motion does not render
the remedy under § 2255 inadequate or ineffective as necessary to
proceed under the savings clause.
Bell v. Holder, 488 F. App’x
822, 823 (5th Cir. 2012)(finding inability to file § 2255 motion
based on statute of limitations does not render § 2255 remedy
inadequate or ineffective);
see also Tolliver v. Dobre, 211 F.3d
876, 878 (5th Cir. 2000)(holding prior unsuccessful § 2255 motion
or inability to file a second or successive § 2255 motion does
not render remedy inadequate or ineffective).
Likewise, Harrison’s reliance on Carachuri - Rosendo and
Lopez, does not entitle him to proceed under the savings clause.
These cases were clearly decided prior to his sentencing, thus
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failing the second prong of the Reyes- Requena test.4
In
addition, the Fifth Circuit has consistently found that sentence
enhancement claims fail to satisfy the requirements of the
savings clause.
Bradford v. Tamez, 660 F.3d 226, 230 (5th Cir.
2011);
Padilla v. United States, 416 F.3d 424, 427 (5th Cir.
2005);
Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
The court concludes that Harrison’s claims fail to satisfy the
Reyes-Requena test, and therefore he cannot proceed under the
savings clause.
III. Conclusion
Since Harrison’s claims challenge the validity of his
sentence and his 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 shall be dismissed as frivolous.
Ojo v. INS, 106 F.3d 680, 683 (5th Cir.1997)(finding inmate’s
§ 2241 petition asserting claims properly pursued under § 2255 to
be “thoroughly frivolous”).
Further, to the extent the petition
can be construed as a § 2255 motion it shall be dismissed for
4
Even if these cases were decided after the imposition of
Harrison’s sentence, he cites no authority supporting the
position that either of these cases applies retroactively on
collateral review. Further, the court notes that several courts have
explicitly found that Carachuri - Rosendo is not retroactively
applicable on collateral review. See Galindo v. Warden, FCI
Texarkana, No. 5:13-cv-80, 2013 WL 6038866 at *2 (E.D. Tex. Nov. 14,
2013)(collecting cases).
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lack of jurisdiction.
Pack, 218 F.3d at 454.
A final judgment in accordance with this memorandum opinion
shall be issued.
SO ORDERED, this the
16th
day of September, 2014.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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