United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, Magistrate Judge.
Before the court is an application for a writ of habeas corpus petition filed pursuant to 28 U.S.C. § 2241 by pro se petitioner Corey Outlaw (hereafter "Outlaw"). Outlaw is an inmate in the custody of the Federal Bureau of Prisons (hereafter "BOP"), and he is currently incarcerated at the Federal Correctional Institute in Oakdale, Louisiana (hereafter "FCIO").
This matter was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court. For the following reasons it is recommended that the petition be DISMISSED WITH PREJUDICE.
In 2002 Outlaw pled guilty to two counts of a four-count indictment, specifically conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(8), and use and carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Doc. 4, p. 1. On January 13, 2003, he was sentenced in the United States District Court for the Middle District of Florida (Jacksonville Division) to 210 months imprisonment on Count One and a consecutive 120 month term of imprisonment as to Count Two, for a total term of 330 months imprisonment. Doc. 4, p. 1.
Outlaw states that he filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the 120 month sentence. Doc. 1, p. 3. The motion was apparently denied as he states that he filed an application for leave to file a second or successive § 2255 motion based on actual innocence with the United States Court of Appeals for the Eleventh Circuit. Doc. 1, p. 2.
Outlaw filed the current habeas corpus petition (28 U.S.C. § 2241) with this court on May 16, 2014. Doc. 1. He filed amended petitions on July 17, 2014, (doc. 6) and October 21, 2014, (doc. 9), as well as affidavits in support of his petition on January 14, 2015. Doc. 10. In this proceeding Outlaw asserts that he is actually innocent of the Section 924(c)(1) charge based on "newly discovered evidence which establishes that there is no longer sufficient evidence to establish a nexus between the petitioner's use of a firearm and the underlying drug trafficking offense of possession with the intent to distribute cocaine." Doc. 4, p. 2. In support of this position, Outlaw relies on the recent United States Supreme Court decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). Doc. 1, p. 4.
Outlaw asks this court to vacate his conviction. Doc. 1, p. 6.
Law and Analysis
Habeas corpus petitions filed pursuant to 28 U.S.C. § 2241 are generally used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). On the other hand, a motion to vacate filed pursuant to 28 U.S.C. § 2255 allows federal inmates to collaterally attack the legality of their conviction or sentence. See Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Here, petitioner collaterally attacks the legality of his conviction and sentence, not the manner in which his sentence is being executed. Accordingly, his claim is appropriately characterized as a motion to vacate pursuant to 28 U.S.C. § 2255.
Federal prisoners may use § 2241 to challenge the legality of their conviction or sentence only if they satisfy the § 2255 "savings clause." See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). The "savings clause" provides that a federal convict may file an application for a writ of habeas corpus pursuant to § 2241 if his or her remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255. A prisoner seeking such relief under the "savings clause" must establish that: (1) his or her claim is based on a retroactively applicable Supreme Court decision which establishes that he or she may have been convicted of a nonexistent offense, and (2) his or her claim was foreclosed by circuit law at the time the claim should have been raised at trial, on appeal, or in his or her first § 2255 motion. Reyes-Requena, 243 F.3d at 904.
Such petitioners bear the burden of demonstrating that the § 2255 remedy is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). The fact that a prior § 2255 motion was unsuccessful or that the petitioner is unable to meet the statute's second or successive requirement does not entitle a petitioner ...