United States District Court, W.D. Louisiana, Lake Charles Division
MELVIN LUTCHER, SR. REG. # 21092-034
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE IUDGE
the court is the pro se petition for writ of habeas corpus,
and amendment thereto, filed pursuant to 28 U.S.C. §
2241 by Melvin Lutcher. Lutcher is an inmate in the custody
of the Bureau of Prisons and is currently incarcerated at the
Federal Correctional Institute at Oakdale, Louisiana.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with 28 U.S.C.
§ 636 and the standing orders of this court. For reasons
stated below, IT IS RECOMMENDED that the
petition be DISMISSED WITHOUT PREJUDICE.
a jury trial, Lutcher was convicted in the United States
District Court for the Eastern District of Louisiana of one
count of conspiracy to possess with intent to distribute
cocaine base and cocaine hydrochloride, a violation of 21
U.S.C. § 846, and one count of use of a communications
facility in connection with a crime, a violation of 21 U.S.C.
§ 843(b). United States v. Johnson, No.
2:03-cr-00338(2), docs. 241 and 256 (E.D. La. Feb. 16, 2005).
On February 16, 2005, he was sentenced to serve concurrent
terms of imprisonment of 293 months and 48 months for those
convictions, respectively. Id. at doc. 256. Lutcher
filed a notice of appeal and sought relief in the United
States Court of Appeals for the Fifth Circuit, but that court
affirmed his conviction on June 2, 2006. Id. at
docs. 259, 303.
then filed his first motion to vacate under 28 U.S.C. §
2255 in the trial court on July 24, 2007, which the court
denied on May 26, 2009, after multiple amendments and
responses. Id. at docs. 321, 428, 429. The Fifth
Circuit denied Lutcher a certificate of appealability on this
judgment and the U.S. Supreme Court denied his petition for a
writ of certiorari. Id. at docs. 455, 472. The U.S.
Supreme Court denied Lutcher's petition for a writ of
certiorari. Id. at doc. 472. On April 7, 2008,
Lutcher also filed a motion to reduce sentence pursuant to 18
U.S.C. § 3582 requesting retroactive application of 2007
amendments to the Sentencing Guidelines. Id. at doc.
375. The court appointed counsel to represent Lutcher for the
purposes of that motion. Id. at doc. 376. It then
denied the motion on August 22, 2008, and the Fifth Circuit
affirmed the court's judgment. Id. at docs. 396,
November 10, 2011, Lutcher filed a motion for reduction of
sentence based on 2011 amendments to the Sentencing
Guidelines which allowed defendants to seek resentencing
based on the Fair Sentencing Act of 2010. Id. at
doc. 476. Counsel was appointed to represent him and the
motion for reduction was granted on March 8, 2012.
Id. at docs. 490, 491. The court noted that, while
the new amended guideline range for his conviction was 151 to
188 months, the mandatory minimum in his case prevented the
court from sentencing him to any term less than 240 months.
Id. at doc. 491. Accordingly, it reduced his
previous sentence from 293 months to 240 months. Id.
On March 22, 2012, Lutcher again moved for reduction of
sentence based on the 2011 amendments, disputing the
mandatory minimum imposed. Id. at doc. 492. The
court construed this motion as a motion for reconsideration
of its order granting the petitioner's second motion to
reduce sentence, and denied it. Id. at doc. 497. The
Fifth Circuit affirmed the trial court's judgment.
See Id. at doc. 513.
then attempted further motions to reduce or vacate sentence
in the trial court, which were likewise denied. See
Id. at docs. 515-57 (proceedings on § 2255 motion
filed November 2013); id. at docs. 585, 610-29
(proceedings on § 3582 motion to reduce sentence filed
November 2014); id. at docs. 630-39, 661
(proceedings on § 2255 motion filed August 2016);
id. at docs. 656-59, 662-69 (proceedings on §
3582 motion to reduce sentence filed September 2017). His
appeal of the trial court's denial of his September 2017
motion to reduce sentence is currently pending before the
Fifth Circuit. See United States v. Lutcher, No.
17-30995 (5th Cir.).
now seeks relief in this court under 28 U.S.C. § 2241,
arguing that his sentence should be reduced based on the
government's failure to prove the amount of cocaine
attributable to him, individually, and the court's
failure to submit that question to the jury and determine his
eligibility for a reduction of the mandatory minimum sentence
based on that amount. Doc. 1; doc. 10. He also asserts that
the trial court used an improper evidentiary standard in
allowing the government to introduce intercepted cell phone
communications. Doc. 1, p. 11.
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). A motion to vacate sentence filed
pursuant to 28 U.S.C. § 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 Lutcher collaterally attacks