Lopez v. United States of America

Filing 5

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Ernest Lopez. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ERNEST LOPEZ
V.
UNITED STATES OF AMERICA

§
§
§
§
§

A-17-CV-398 SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court is Ernest Lopez’s Petition for Writ of Habeas Corpus brought pursuant to

28 U.S.C. § 2241 (Dkt. # 1). The District Court referred the above-case to the undersigned
Magistrate Judge for a determination pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C
of the Local Rules of the United States District Court for the Western District of Texas, Local Rules
for the Assignment of Duties to United States Magistrate Judges.
I. GENERAL BACKGROUND
On September 21, 2011, in the Western District of Texas Petitioner Ernest Lopez pled guilty
pursuant to a plea agreement to conspiracy to possess with intent to distribute heroin, in violation
of 21 U.S.C. §§ 841(b)(1)(A) and 846. On December 19, 2011, he was sentenced to a 262-month
term of imprisonment. Lopez appealed his sentence, and the Fifth Circuit dismissed the appeal as
frivolous on October 15, 2012. Lopez then filed a motion to reduce his sentence pursuant to
U.S.S.C. Amendment 782, but this was denied on November 13, 2015. On February 9, 2017, Lopez
filed a motion to vacate the sentence under 28 U.S.C. § 2255, which the court dismissed as timebarred. See United States v. Lopez, No. 1:11-CR-360(5)-SS, Dkt. No. 820 (W.D. Tex. Apr. 5,
2017). Following the dismissal, Lopez filed the instant petition for writ of habeas corpus under 28
U.S.C. § 2241. Dkt. No. 1.

II. ANALYSIS
In the instant § 2241 Petition, Lopez argues that he is actually innocent of being a “career
offender” under U.S.S.G. § 4B1.1(a) as his two prior state convictions should not have resulted in
an enhancement to his sentence. Because Lopez is attacking errors that occurred at or prior to his
sentencing, his claims are outside the scope of a § 2241 petition. “28 U.S.C. § 2255, not § 2241, is
the proper means of attacking errors that occurred during or before sentencing.” Ojo v. INS, 106
F.3d 680, 683 (5th Cir. 1997). In contrast, § 2241 is used by prisoners to attack the manner in which
a sentence is carried out or the prison authorities’ determination of its duration. Pack v. Yusuff, 218
F.3d 448, 451 (5th Cir. 2000). A § 2241 petition that seeks to challenge the validity of a federal
sentence must either be dismissed or construed as a § 2255 motion. Id. at 452. Lopez filed a timebarred § 2255 motion previously, and as such his § 2241 petition should be dismissed. Lopez, No.
1:11-CR-360(5)-SS, Dkt. No. 820.
The Court may nevertheless address Lopez’s claims through the so called “savings clause”
provision of § 2255 if Lopez can demonstrate that § 2255 otherwise provides him with an
“inadequate” or “ineffective” remedy. Benson, 511 F.3d at 487. A petitioner seeking relief under
the § 2255 savings clause must demonstrate three things: (1) his claim is based on a retroactively
applicable Supreme Court decision; (2) the Supreme Court decision establishes that he was “actually
innocent” of the charges against him because the decision decriminalized the conduct for which he
was convicted; and (3) his claim would have been foreclosed by existing circuit precedent had he
raised it at trial, on direct appeal, or in his original § 2255 petition. Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). “[T]he core idea is that the petitioner may have been imprisoned
for conduct that was not prohibited by law.” Id. at 903. The petitioner bears the burden of

2

demonstrating that “the remedy by motion [under § 2255] is inadequate or ineffective to test the
legality of his detention.” § 2255(e); see also Pack, 218 F.3d at 452.
Lopez has failed to demonstrate that § 2255 provides him with an inadequate or ineffective
remedy because he has not established that his claims are based on a retroactively applicable
Supreme Court decision establishing that he was convicted of a nonexistent offense. Lopez argues
that the Supreme Court’s decision in Mathis v. United States, 136 S.Ct. 2243 (2016), shows that he
is actually innocent of his sentence under the Armed Career Criminal Act. However, “a claim of
actual innocence of a career offender enhancement is not a claim of actual innocence of the crime
of conviction and, thus not the type of claim that warrants review under § 2241.” Dorsey v. Tamez,
465 F. App’x 372 (5th Cir. 2012).
Moreover, as discussed in the order denying Lopez’s § 2255 petition, Mathis has not been
found to be retroactive. See. Lopez, No. 1:11-CR-360-SS, Dkt. No. 820 at 4–5. The Supreme Court
has not declared its decision in Mathis to be retroactively applicable on collateral review. See
Mathis, 136 S.Ct. at 2257 (“Our precedents make this a straightforward case.”); United States v.
Uribe, 838 F.3d667, 670 (5th Cir. 2016) (finding that Mathis “provided helpful guidance for
determining whether a predicate statute of conviction is divisible”). Similarly, Lopez’s reliance on
Hinkle v. United States, 832 F.3d 569 (5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347
(5th Cir. 2017), is misplaced. As discussed in Judge Spark’s previous order, the courts in both
Hinkle and Tanksley merely applied Mathis on direct appeal, and were not collateral attacks to the
sentence. See Lopez, No. 1:11-CR-360-SS, Dkt. No. 820 at 6–7 (citing United States v. Bernea, No.
2:01-CR-15, 2017 WL 821787, at *2 (S.D. Tex. Mar. 2, 2017)). Accordingly, Lopez has not shown
that he is entitled to proceed under § 2241 based on the savings clause of § 2255(e). Based upon the
foregoing, this case should be dismissed.
3

III. RECOMMENDATION
The undersigned RECOMMENDS that the District Court DISMISS Ernest Lopez’s Petition
and Amended Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2241 (Dkt. No.
1) for lack of jurisdiction.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file
written objections to the proposed findings and recommendations contained in this Report within
fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and, except
upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed
factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C);
Thomas v. Arn, 474 U.S. 140, 150-53, (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428-29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically, the Clerk is directed to mail such party a copy of this Report and
Recommendation by certified mail, return receipt requested.
SIGNED this 20th day of June, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

4