Smith v. Martin
MEMORANDUM AND OPINION - The Court has considered the pleadings and applicable law. For the reasons stated, Smith's Petition for habeas corpus relief pursuant to § 2241 is dismissed as frivolous. Furthermore, to the extent Smith's P etition can be construed as a § 2255 motion it is dismissed without prejudice to Smith's pursuit of these claims in his pending § 2255 motion. A Final Judgment in accordance with this Memorandum Opinion shall be issued. Signed by District Judge Carlton W. Reeves on 5/8/2017 (ND)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CALVIN LOUIS SMITH, #17122-043
CIVIL ACTION NO. 3:17-cv-199-CWR-FKB
WARDEN MARCUS MARTIN
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner Calvin
Louis Smith is a federal inmate presently incarcerated at the Federal Correctional Complex in Yazoo
City, Mississippi. He brings this pro se Petition for habeas corpus relief pursuant to 28 U.S.C. §
2241. After reviewing the Petition  and Declaration in Support , in conjunction with the
relevant legal authority, the Court concludes that Smith’s Petition should be dismissed.
In 2014, a jury found Smith guilty of bribery involving federal programs in violation of 18
U.S.C. § 666 (a)(1)(B). See United States v. Smith, Crim. Action No. 3:13-cr-34-HTW-LRA (S.D.
Miss. Sep. 30, 2014). The Court sentenced Smith to serve a 66-month term of imprisonment
followed by a two-year term of supervised release. Id. Smith’s motion for post-conviction relief
under 28 U.S.C. § 2255 is pending in his criminal case. Id.
Smith is challenging the validity of his conviction based on ineffective assistance of counsel.
Smith states that he is bringing the same nine grounds for relief in this § 2241 petition that he is
asserting in his pending § 2255 motion. Pet.  at 4. Smith argues that § 2255 is an inadequate or
ineffective means to bring his claims because the Court has not directed the United States Attorney
to respond to his § 2255 motion or issued a ruling on the motion. Id. at 7. As relief, Smith is asking
the Court to invalidate his conviction and order his immediate release from incarceration. Id. at 26.
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. Id. (quoting Cox v.
Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)) (“[T]he primary means of collateral attack on a
federal sentence” is a § 2255 motion.). If a prisoner is challenging errors that “occurred during or
before sentencing” his claims should be pursued in a § 2255 motion. Ojo v. INS, 106 F.3d 680, 683
(5th Cir.1997) (citations omitted).
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) 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 ReyesRequena v. United States, 243 F.3d at 904).
Since Smith is challenging the validity of his conviction and sentence, he may not pursue
these claims in a § 2241 petition unless he can meet the requirements of the savings clause. Smith
argues that he should be allowed to proceed under the savings clause because the sentencing court
has not directed the United States Attorney to respond to his § 2255 motion or issued a ruling on the
motion. The Court notes that on May 4, 2017, an Order  was entered in Smith’s criminal case
directing the United States Attorney to respond to Smith’s § 2255 motion. Smith is currently
proceeding with his claims under § 2255. A habeas petition under
§ 2241 is not a substitute for a motion under § 2255. Pack, 218 F.3d at 452 (citations omitted).
Smith is not relying on a retroactively applicable Supreme Court decision establishing that
he may have been convicted of a nonexistent offense to argue that he meets the requirements of the
savings clause. At best, Smith argues that his attempt at § 2255 relief is, at this time, unsuccessful.
A prior unsuccessful § 2255 motion or an inability to file a second or successive
§ 2255 motion does not entitle an inmate to proceed under the savings clause. Tolliver v. Dobre, 211
F.3d 876, 878 (5th Cir. 2000); see also 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).
Smith bears the burden of showing the inadequacy or ineffectiveness of the § 2255 remedy
in order to proceed with his claims in a § 2241 petition. Jeffers v. Chandler, 253 F.3d 827, 830 (5th
Cir. 2001). He fails to meet this burden. Therefore, Smith is not entitled to habeas relief under
The Court has considered the pleadings and applicable law. For the reasons stated,
Smith’s Petition for habeas corpus relief pursuant to § 2241 is dismissed as frivolous. See Ojo vs.
INS, 106 F.3d 680, 683 (5th Cir.1997) (finding inmate’s § 2241 petition asserting claims properly
pursued under § 2255 to be “thoroughly frivolous”). Furthermore, to the extent Smith’s Petition can
be construed as a § 2255 motion it is dismissed without prejudice to Smith’s pursuit of these claims
in his pending § 2255 motion.
A Final Judgment in accordance with this Memorandum Opinion shall be issued.1
SO ORDERED, this the 8th day of May, 2017.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
A certificate of appealability (COA) is not needed for a federal inmate to appeal the denial of relief under
28 U.S.C. § 2241. See Castro Flores v. Dretke, 120 F. App’x 537, 538-39 (5th Cir. 2005).
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