Smith v. Longley

Filing 5

Memorandum Opinion and Order re 1 Petition for Writ of Habeas Corpus. Petitioner does not meet the "savings clause" of § 2255 and his additional arguments that he should be allowed to proceed with the instant habeas petition are w ithout merit. This Petition 1 for relief pursuant to § 2241 is dismissed with prejudice as frivolous, and, to the extent that the Petition can be construed as a § 2255 motion, it is dismissed with prejudice for lack of jurisdiction. A Final Judgment in accordance with this Memorandum Opinion and Order will be entered. Signed by Honorable David C. Bramlette, III on March 6, 2013.(lda)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
BARRY SMITH, #29125-034
VERSUS

PETITIONER
CIVIL ACTION NO. 5:13-cv-8-DCB-MTP

ARCHIE B. LONGLEY, WARDEN

RESPONDENT

MEMORANDUM OPINION AND ORDER
This cause is before the Court, sua sponte, for consideration of dismissal. Petitioner
Barry Smith, an inmate at the Federal Correctional Camp (FCC), Yazoo City, Mississippi, filed
this Petition [1] for habeas corpus relief pursuant to 28 U.S.C. § 2241 on January 14, 2013.
Upon review of the Petition [1], Response [4] and applicable case law, the Court comes to the
following conclusion.
I.

Background
Petitioner entered a guilty plea on June 15, 2005, in the United States District Court for

the Eastern District of Louisiana to the criminal charges of possession with intent to distribute
cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and possession
of firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1). Resp. [4] at
1; Pet. [1] at 3. Petitioner received a 188-month sentence for the conviction of possession with
intent to distribute cocaine base and a 60-month sentence for possession of firearms in
furtherance of drug trafficking. Resp. [4] at 1. These sentences are to run consecutively. Id.
In the instant § 2241 habeas, Petitioner bases his habeas request on his contention that he
is actually innocent of the criminal charge of possession of a firearm in furtherance of a drug
trafficking crime because there was no evidence submitted linking the drugs and the guns. Pet.
[1] at 5. Petitioner asserts that he “had no knowledge of the elements of the offense of
possession of firearms in furtherance of drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1), when he entered his plea.” Id. More specifically, Petitioner claims that the decision
of Herrera v. Collins, 506 U.S. 390 (1993) supports his request for § 2241 habeas relief. Based
on Herrara, Petitioner argues that “federal constitutional claims [must be] considered on the
merits if he makes a proper showing of actual innocence.” Herrara, 506 U.S. at 404.
II.

Analysis
A petitioner may attack the manner in which his sentence “is carried out or the prison

authorities’ determination of its duration” pursuant to 28 U.S.C. § 2241, and a § 2241 petition
“must be filed in the same district where the prisoner is incarcerated.” Pack v. Yusuff, 218 F.3d
448, 451 (5th Cir. 2000). A motion filed pursuant to “section 2255, not section 2241, is the
proper means of attacking errors that occurred during or before sentencing.” Ojo v. Immigration
and Naturalization Service, 106 F.3d 680, 683 (5th Cir.1997) (citing Cox v. Warden, Fed.
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.1990)). As noted by the Fifth Circuit Court of
Appeals, “[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for
a motion under [section] 2255.” Pack, 218 F.3d at 452 (quoting McGhee v. Hanberry, 604 F.2d
9, 10 (5th Cir. 1979)).
In the instant case, Petitioner challenges matters that occurred at or prior to being
convicted and sentenced. Petitioner’s request for habeas relief is not, therefore, properly
asserted under § 2241, and “[a] section 2241 petition that seeks to challenge the validity of a
federal sentence must either be dismissed or construed as a section 2255 motion.” Pack, 218
F.3d at 452. There is, however, an exception to this general rule. A prisoner can resort to §
2241 if he satisfies his burden of establishing the so-called savings clause of § 2255, which
“provides a means to petition the courts for issuance of the ‘Great Writ’ when § 2255 is
inadequate or unavailable.” Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 346 (5th

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Cir. 2002).
The United States Court of Appeals for the Fifth Circuit, in providing guidance as to the
factors that must be satisfied for a petitioner to meet the stringent “inadequate or ineffective”
requirement, has held the savings clause of § 2255 will apply to a claim when both prongs of the
test are satisfied, as follows:
(1) when the claim is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of a nonexistent
offense and
(2) that claim was foreclosed by circuit law at the time when the claim should
have been raised in the petitioner’s trial, appeal, or first § 2255 motion.
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Petitioner argues that he is “actually innocent” of the crime of possession of firearms in
furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1) because the decision of
Bailey v. United States, 516 U.S. 137 (1995) provides that mere possession of a firearm is not
sufficient to sustain a conviction under 18 U.S.C. § 924(c)(1). Petitioner entered his guilty plea
on June 16, 2005, and was sentenced on January 4, 2006. United States v. Smith,
No. 2:04-cr-339-MVL-JCW (E.D. La. Jan. 17, 2006). The decision in Bailey was issued in
1995. Thus, Bailey was not “foreclosed by circuit law” at the time of Petitioner’s trial, direct
appeal or a first § 2255 motion. See Thomas v. Bureau of Prisons, No. 01-60831, 37 Fed. App’x
712, 2002 WL 1220295, at *1 (5th Cir. 2002) (holding that petitioner’s reliance on a United
States Supreme Court opinion that was available at his sentencing and on direct appeal fails to
meet the ‘savings clause’ requirements).
Petitioner also asserts that because he is “actually innocent,” as provided by the decision
of Herrera v. Collins, 506 U.S. 390 (1993), this Court must vacate and set aside his conviction of
possession of firearms in furtherance of drug trafficking. Pet. [1] at 6-7,10. This Court is not
persuaded by Petitioner’s arguments. As discussed above, the decision of Bailey has been
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available to Petitioner before, during and after his conviction and sentence. Petitioner’s habeas
petition based on his claim of “actual innocence” is found to be without merit.
Finally, it is worth noting that Petitioner filed an unsuccessful § 2255 motion in the
sentencing court. See Resp. [4] at 2. The lack of success under § 2255 fails to establish that the
§ 2255 remedy is “inadequate or unavailable.” Wilson v. Roy, 643 F.3d 433, 435 (5th Cir.
2011)(citing Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000)). Likewise, the inability to
meet the AEDPA’s second or successive requirement does not make § 2255 inadequate or
ineffective. Id.
This Court finds that to the extent that this claim should be construed as a motion
pursuant to § 2255, such a motion must be filed in the sentencing court. Pack, 218 F.3d at 452,
see also 28 U.S.C. § 2255(a). Petitioner was sentenced in the United States District Court for the
Eastern District of Louisiana and therefore he is required to pursue his § 2255 motion in that
court. This Court lacks jurisdiction to consider the motion.
III.

Conclusion
As stated above, Petitioner does not meet the “savings clause” of § 2255 and his

additional arguments that he should be allowed to proceed with the instant habeas petition are
without merit. Consequently, this Petition [1] for relief pursuant to § 2241 is dismissed with
prejudice as frivolous, and, to the extent that the Petition can be construed as a § 2255 motion, it
is dismissed with prejudice for lack of jurisdiction. See Ojo, 106 F.3d at 683.
A Final Judgment in accordance with this Memorandum Opinion and Order will be
entered.
This the 6th

day of March, 2013.
s/David Bramlette
UNITED STATES DISTRICT JUDGE

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