Lucas v. United States of America

Filing 6

AMENDED ORDER Dismissing Case and Declining to Issue a Certificate of Appealability. Signed by Chief Judge Jeffrey L. Viken on 3/6/14. (SB) Modified on 3/6/2014 (SB).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JEROME LUCAS, a/k/a
JEROME LEKENDRIC LUCAS,
Petitioner,
vs.

UNITED STATES OF AMERICA,
Respondent.

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CIV. 13-5017-JLV
AMENDED
ORDER OVERRULING
PETITIONER’S OBJECTION,
ADOPTING REPORT AND
RECOMMENDATION, AND
DISMISSING PETITION

Petitioner Jerome Lucas is a federal prisoner incarcerated in the United
States Penitentiary in Florence, Colorado. (Docket 1-3). Mr. Lucas filed a
petition pursuant to 28 U.S.C. § 2241 challenging the constitutionality of his
conviction in United States v. Jerome Lekendric Lucas, CR. 06-50057-AWB
(D.S.D. 2007). (Docket 1). United States Magistrate Judge John E. Simko filed
a report recommending the petition be denied with prejudice. (Docket 3). Mr.
Lucas timely filed an objection to the report and recommendation. (Docket 4).
Mr. Lucas claims he timely filed a 28 U.S.C. § 2255 petition for a writ of habeas
corpus on April 17, 2008. Id. at p. 1. He claims the § 2255 petition was given
“to Officer Guzman, which my mail was marked as legal mail, so it will be
logged in the legal mail book as proof.” Id. at pp. 2-3. “However, after waiting
four (4) years for a response to his 2255 motion, he was advised to file the
current 2241 motion.” Id. at p. 2.

Mr. Lucas’s objection represents that a copy of his § 2255 petition as
filed in 2008 was attached. Id. at p. 3. Neither a copy of the penitentiary legal
mail book nor a copy of a 2008 section 2255 petition were attached to Mr.
Lucas’s objection.1
On January 25, 2007, Mr. Lucas entered a guilty plea to felon in
possession of a firearm-armed career criminal in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e)(1). See CR. 06-50057, Docket 20. On April 30, 2007,
Mr. Lucas was sentenced to 180 months of incarceration and 5 years of
supervised release. See CR. 06-50057, Docket 26. Mr. Lucas did not file a
direct appeal. (Docket 3 at p. 2); see also CR. 06-50057.
The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix, 897
F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may
“accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1). After careful review of
the record, the court adopts the findings and recommendations of the
magistrate judge and denies Mr. Lucas’s petition.
1

A handwritten § 2255 petition dated “4-17-08” was received by the clerk
of court on March 25, 2013. Lucas v. United States, CIV. 13-5021-JLV,
Western Division, District of South Dakota. (Docket 1). The envelope was
marked “Legal Mail 3/19/2013 JLL.” (Docket 1-1 at p. 1). The penitentiary
legal mail certification indicated the envelope was received for processing on
March 20, 2013. Id. at p. 2. The envelope bears a United States Postal Service
postmark of March 20, 2013. Id. at p. 1. The petition in CIV. 13-5021 will be
separately addressed in that case.
2

DISCUSSION
The report and recommendation properly identifies the limited nature of
a § 2241 petition. (Docket 3 at pp. 2-3). “A petitioner may attack the execution
of his sentence through § 2241 in the district where he is incarcerated; a
challenge to the validity of the sentence itself must be brought under § 2255 in
the district of the sentencing court.” Matheny v. Morrison, 307 F.3d 709, 711
(8th Cir. 2002) (referencing Bell v. United States, 48 F.3d 1042, 1043 (8th Cir.
1995) (emphasis added). A § 2255 petition is the sole remedy available to Mr.
Lucas as he is collaterally challenging the validity of the original sentence. “It
is well settled a collateral challenge to a federal conviction or sentence must
generally be raised in a motion to vacate filed in the sentencing court under
§ 2255 . . . and not in a habeas petition filed . . . under § 2241.” Hill v.
Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003).
The only avenue for relief by a § 2241 petition exists when the petitioner
can prove a Ҥ 2255 [petition] was inadequate or ineffective to test the legality
of [his] conviction.” Id. Mr. Lucas bears “the burden of demonstrating § 2255
relief in the sentencing court would be unavailable or ineffective.” Id. “[A] §
2255 motion is not inadequate or ineffective merely because: (1) § 2255 relief
has already been denied, (2) [the] petitioner has been denied permission to file
a second or successive § 2255 motion, (3) a second or successive § 2255
motion has been dismissed, or (4) [the] petitioner has allowed the one year
statute of limitations and/or grace period to expire.” Id. (citing United States v.

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Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (internal quotation marked omitted,
emphasis added).
Mr. Lucas’ challenge to the constitutionality of his original sentence in
2007 could have been raised in a § 2255 petition. Mr. Lucas claims he
prepared and delivered a § 2255 petition within the prison legal mail system,
but provides no proof of delivery through a legal mail log or other evidence.
Rather, the one-year statute of limitations expired. The court finds Mr. Lucas
has not met his burden to show a remedy under § 2255 was inadequate or
ineffective.
Accordingly, it is hereby
ORDERED that Mr. Lucas’ objection to the report and recommendation
(Docket 4) is overruled.
IT IS FURTHER ORDERED that the report and recommendation of
Magistrate Judge John E. Simko (Docket 3) is adopted by the court.
IT IS FURTHER ORDERED that Mr. Lucas’ petition (Docket 1) is
dismissed with prejudice.
IT IS FURTHER ORDERED that a certificate of appealability shall not
issue.
Dated March 6, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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