United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, Magistrate Judge.
Before the court is pro se petition for a writ of habeas corpus filed pursuant to 28 USC §2241 by petitioner Ernest Patton. Patton is an inmate in the custody of the Federal Bureau of Prisons (hereinafter "BOP"); he is currently incarcerated at the Federal Correctional Institute in Oakdale, Louisiana (hereinafter "FCIO").
This matter was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 USC §636 and the standing orders of the court. For the following reasons it is recommended that the petition be DISMISSED WITH PREJUDICE.
Following a jury trial, Patton was found guilty of racketeering and conspiracy. Doc. 5, att. 1, p. 2. In April of 1999 he was sentenced in the United States District Court for the Northern District of Georgia to 480 months imprisonment. Id. Thereafter, Patton appealed the judgment of conviction and sentence, which the U.S. Eleventh Circuit Court of Appeals affirmed on April 21, 2001. Id.
Patton then filed a motion to vacate, set aside or correct sentence pursuant to 28 USC §2255 which was denied on July 29, 2003. Id. He appealed the denial but on December 5, 2003, the Eleventh Circuit dismissed his appeal on grounds that it lacked of jurisdiction. Id. On June 21, 2004, certain counts still pending against Patton were dismissed. Id. At some point thereafter, Patton filed a petition under 28 USC §2241 which was dismissed by the U.S. District Court for South Carolina on April 5, 2005. See Patton v. LaManna, 3:05-cv-312, doc. 11.
On January 1, 2006, Patton filed a subsequent motion to reduce sentence. It too was denied on March 24, 2006, on grounds that it was successive and because the case on which the petitioner relied for relief did not apply retroactively on collateral review. Doc. 5, att. 1, p. 3.
On May 18, 2007, a second motion under §2241 was denied by the Northern District of Georgia for Patton's failure to exhaust his administrative remedies. See Patton v. Keller, 1:11cv-224, doc. 12, p. 1. On January 21, 2011 he filed a third motion under §2241 which was also denied on July 12, 2012. Id. at doc. 1; Id. at doc. 17, p. 1.
Patton filed the instant §2241 petition, his fourth, on April 28, 2014. Doc. 1. In it he claims that he is actually innocent of the racketeering offense because there was no "finding of guilt by the jury...of the predicate act (possession with intent)...[and] in addition...[there was]...a judgment of acquittal on Count I of the superseding indictment...." Doc. 1, p. 4. Patton also claims that he is actually innocent of the enhanced sentence. Doc. 1, p. 5. Patton bases his claims on the recent Supreme Court decisions in Alleyne v. United States, 133 S.Ct. 2151 (2013) and United States v. Rosemond, 134 S.Ct. 1240 (2014).
Law and Analysis
Habeas corpus petitions filed pursuant to 28 USC §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). By contrast a motion to vacate sentence filed pursuant to 28 USC § 2255 allows federal inmates to collaterally attack the legality of their convictions or sentences. Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Here, Patton collaterally attacks his incarceration arguing errors with respect to his federal conviction and challenges the sentence imposed, not the execution of his sentence. Therefore, his claim should be advanced in a §2255 Motion to Vacate.
Federal prisoners may use §2241 to challenge the legality of their convictions or sentences but only if they satisfy the §2255 "savings clause." Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). The "savings clause" provides that a federal convict may file a writ of habeas corpus pursuant to §2241 if the §2255 motion's remedy is "inadequate or ineffective to test the legality of his detention." Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); 28 U.S.C. § 2255. A prisoner seeking such relief under the "savings clause" must establish: (1) that his claim is based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense, and (2) that his claim was foreclosed by circuit law at the time it should have been raised in his trial, appeal, or first motion under §2255. ...