United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2241) filed by pro se Petitioner Earnest Washington
(“Washington”) (#25993-044). Washington is an
inmate in the custody of the Federal Bureau of Prisons,
incarcerated at the United States Penitentiary in Pollock,
Louisiana. Washington challenges his conviction and sentence
imposed in the United States District Court for the Eastern
District of Missouri.
matter has been 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.
was convicted of two counts of conspiracy to distribute
heroin and conspiracy to commit murder for hire, and he was
sentenced to life imprisonment. United States v.
Washington, 318 F.3d 845 (8th Cir. 2003).
Washington's conviction and sentence were affirmed on
appeal. Id. The United States Supreme Court denied
Washington's petition for writ of certiorari.
Washington v. United States, 540 U.S. 899 (2003).
October 2004, Washington filed his first motion to vacate
under § 2255. (Docket No. 4:04-cv-1360, E.D. Mo.). The
district court denied the motion, and the appellate court
affirmed. (Docket No. 09-1983, 8th Cir.). Washington filed a
second § 2255 motion in 2014, which was dismissed
without prejudice for failure to obtain authorization from
the appellate court. (4:14-cv-1117, E.D. Mo.).
2015, Washington filed a third § 2255 motion, arguing
that the Supreme Court's decision in Burrage v.
United States, 134 S.Ct. 881 (2014), created a
newly-recognized right that justified his release from
prison. (4:15-cv-216, E.D. Mo.). The district court
transferred the petition to the Eight Circuit Court of
Appeals, which denied Washington's application without
providing reasons. (4:15-cv-216, E.D. Mo., Doc. 3).
filed the instant § 2241 petition claiming entitlement
to proceed under the savings clause of § 2255 because of
the Supreme Court's decision in Burrage.
Law and Analysis
seeks to proceed under the savings clause of § 2255(e),
which provides a limited exception to the rule that a §
2241 petition may not be used to challenge the validity of a
federal sentence and conviction. See Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). The savings clause allows
a prisoner to rely on § 2241 if the remedy available
under § 2255 is “inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. §
2255(e). The burden of affirmatively proving that the §
2255 remedy is inadequate is squarely on the petitioner.
See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979). A prisoner may not utilize § 2241 merely to avoid
procedural hurdles presented under § 2255, such as the
one-year statute of limitations or the restriction on filing
second or successive motions to vacate. See Pack,
218 F.3d at 453 (holding that neither a limitations bar nor
successiveness make § 2255 ineffective or inadequate).
sought permission to file a second or successive § 2255
motion under § 2255(h), based on Burrage, but
the Eighth Circuit denied the request. The Fifth Circuit has
consistently held that the denial of a motion for leave to
file a second or successive § 2255 motion does not
render the § 2255 remedy inadequate or ineffective so as
to permit a petition under § 2241. See Pack v.
Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000).
Fifth Circuit has identified the limited circumstances under
which the savings clause of § 2255 applies. A petitioner
must demonstrate that: (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.
See Reyes-Requena, 243 F.3d 893, 904 (5th Cir.
claims he is entitled to proceed under the savings clause
based on Burrage. However, Burrage is
inapplicable to Washington's case. In Burrage,
the defendant was convicted of distribution of a controlled
substance that resulted in death. See Burrage, 134
S.Ct. at 885. The victim died “following an extended
drug binge.” Id. At trial, two medical experts
testified that multiple drugs were present in the
victim's system at the time of his death, including the
heroin he purchased from the defendant, as well as codeine,
alprazolam, clonazepam, and oxycodone. Id. The
experts could only conclude ...