United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL
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 Eugene Atkins
(“Atkins”) (#12102-040). Atkins is an inmate in
the custody of the Federal Bureau of Prisons, incarcerated at
the United States Penitentiary in Pollock, Louisiana. Atkins
challenges the legality of his conviction and sentence
imposed in the United States District Court for the Western
District of Michigan.
was convicted of possession of heroin with the intent to
distribute; distributing heroin that resulted in “death
from the use of the heroin, ” in violation of 21 U.S.C.
§ 841(b)(1)(C); conspiracy to distribute heroin
involving 100 grams or more; and two counts of distribution
of heroin to a person under the age of 21. See United
States v. Atkins, 289 Fed.Appx. 872, 873 (6th Cir.
2008). The victim was a 17-year-old drug addict who injected
heroin supplied by Atkins and died the following morning.
See Atkins, 289 Fed.Appx. at 873. Atkins was
sentenced to life imprisonment on the first count
(distribution resulting in death) and third count (conspiracy
to distribute heroin) and to 360 months of imprisonment on
the other three counts. Atkins, 289 Fed.Appx. at
875. Atkins's conviction and sentence were affirmed on
filed a motion to vacate under 28 U.S.C. § 2255,
asserting: (1) ineffective assistance of trial and appellate
counsel for not challenging supplemental jury instructions;
(2) actual innocence because the evidence contradicts the
conclusion that Atkins could have been the one who sold the
drugs; and (3) actual innocence because the alleged
co-conspirator was not convicted. See Atkins v. United
States, 2010 WL 4977039 at *1 (W.D. Mich., Dec. 2,
2010). The district court denied Atkins's § 2255
motion, finding that: (1) trial and appellate counsel were
not ineffective for not challenging the supplemental jury
instructions; (2) evidence from cell phone towers does not
actually prove that Atkins was innocent; (3) Atkins is not
actually innocent based on the government's failure to
charge or convict his alleged co-conspirator; and (4) trial
counsel was not ineffective. Id. at *2-9. The court
also denied petitioner a certificate of appealability.
Id. at *10.
sought permission to file a second or successive motion to
vacate in the Sixth Circuit Court of Appeals, relying on
Burrage v. United States, 134 S.Ct. 881, 892 (2014).
In denying the motion, the Sixth Circuit found that
Burrage was “a case involving statutory
interpretation, ” and “did not establish a new
rule of constitutional law that the Supreme Court has made
retroactive.” (Case No. 14-2038, 6th Cir., Doc. 41).
filed a § 2241 petition in the Northern District of West
Virginia, contending he was actually innocent of the charge
of Distribution of Heroin Resulting in Serious Bodily Injury
and Death, and of the life sentence penalty enhancement under
§ 841(b)(1)(C). He also claimed the Burrage
decision was applicable to his case. See Atkins v.
O'Brien, 148 F.Supp.3d 547, 550 (N.D. W.Va. 2015),
aff'd, 647 Fed.Appx. 254 (4th Cir. 2016). Specifically,
Atkins argued that “Burrage renders his
conviction ineffective because the heroin that he distributed
was not ‘an independently sufficient cause of
death.'” Id. at 551. Atkins argued that
“another addict, who was with the victim during the
night that he died, should have more carefully attended to
McKinney after he injected heroin supplied by
petitioner.” Id. Finally, Atkins claimed that
if not for the other addict's purported “gross
negligence, [the victim] would not have died.”
Id. The district court found that Atkins's
reliance on Burrage was fundamentally misplaced.
again sought permission to file a second or successive motion
to vacate in the Sixth Circuit Court of Appeals, citing
Burrage. (Case No. 16-1887, 6th Cir., Doc. 10-2).
The appellate court denied the motion because
“Burrage, a case involving statutory
interpretation, did not establish a new rule of
constitutional law and has not been made retroactive by the
Supreme Court.” (Case No. 16-1887, 6th Cir., Doc. 10-2,
p. 2). The court went on to find that “even if
Burrage constituted a new rule of constitutional law
and was made retroactive by the Supreme Court, it would not
affect this case because the victim would not have died
without the heroin that Atkins distributed to him. See
United State v. Volkman, 797 F.3d 377, 392 (6th Cir.
2015).” (Case No. 16-1887, 6th Cir., Doc. 10-2, p. 2).
then filed a habeas petition in this Court, again seeking to
proceed under the savings clause based on Burrage.
Law and Analysis
federal prisoner may challenge his sentence under either 28
U.S.C. §§ 2241 or 2255. Though closely related,
these two provisions are “distinct mechanisms for
seeking post-conviction relief.” Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A § 2241
petition may be filed by a prisoner challenging the manner in
which his sentence is being executed or the prison
authorities' determination of its duration. See
Reyes- Requena v. U.S., 243 F.3d 893, 900-01 (5th Cir.
2001); Pack, 218 F.3d at 451. The proper venue for
such a challenge is the district in which the prisoner is
incarcerated. See Kinder v. Purdy, 222 F.3d 209, 212
(5th Cir. 2000) (citing Pack, 218 F.3d at 451).
contrast, a § 2255 motion should be used to vacate, set
aside, or correct a sentence based on errors that occurred at
or prior to sentencing. See Cox v. Warden, Federal
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)
(citing United States v. Flores, 616 F.2d 840, 842
(5th Cir. 1980)). A § 2255 motion “provides the
primary means of collateral attack on a federal
sentence” and must be filed in the court that issued
the contested sentence. See Cox, 911 F.2d at 1113.
seeks to proceed with his challenge 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, 218 F.3d at 452. The savings clause allows a
prisoner to rely on § 2241 if the remedy available under
§ 2255 would be “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 ...