Nunn v. Martin
MEMORANDUM OPINION regarding petitioner's petition. Signed by Judge Thad Heartfield on 12/27/2011. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYRONE NUNN, SR.
CIVIL ACTION NO. 1:11cv633
Petitioner Tyrone Nunn, Sr., an inmate confined within the
Bureau of Prisons, proceeding pro se, filed this petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner is not challenging the manner in which his sentence
is being executed.
Instead, he attacks the legality of his
A motion to vacate, set aside or correct sentence
filed pursuant to 28 U.S.C. § 2255 is the primary means of
collaterally attacking a federal conviction and sentence. Tolliver
v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).
In contrast, a
petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241 is normally the method to attack the manner in which a
sentence is being executed.
A petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2241 is not a substitute for a motion to vacate.
v. Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, 534 U.S.
A prisoner may use Section 2241 as the vehicle for
attacking a conviction only if it appears that the remedy provided
by Section 2255 “is inadequate or ineffective to test the legality
of his detention.”
28 U.S.C. § 2255.
A petitioner bears the
burden of proving the inadequacy or ineffectiveness of the remedy
provided by Section 2255.
Jeffers, 253 F.3d at 830.
unsuccessful motion to vacate filed pursuant to Section 2255 does
not make Section 2255 inadequate or ineffective.
F.3d at 878.
The United States Court of Appeals for the Fifth Circuit has
set forth two requirements a petitioner must satisfy to demonstrate
The petitioner must establish that his grounds for
review: (1) are based on a retroactively applicable Supreme Court
decision which establishes the petitioner may have been convicted
of a nonexistent offense and (2) were foreclosed by circuit law at
the time when the ground for review could have been raised in
petitioner’s trial, direct appeal or initial motion to vacate.
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
In order to satisfy the first prong of the test, the petitioner
must show that, based on a retroactively applicable Supreme Court
decision, he was convicted for conduct that did not constitute a
Jeffers, 253 F.3d at 830-31.
petitioner has not demonstrated he was convicted of a nonexistent
offense or that his grounds for review are based on a retroactively
applicable Supreme Court decision and were foreclosed by circuit
law when they could have been raised, he has failed to satisfy
either prong of the Reyes-Requena test.
Petitioner’s grounds for
review are therefore not cognizable in a petition filed pursuant to
For the reasons set forth above, this petition for writ of
habeas corpus will be dismissed.
An appropriate final judgment
shall be entered.
SIGNED this the 27 day of December, 2011.
United States District Judge
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