United States District Court, W.D. Louisiana, Alexandria Division
HENRY C. ANEKWU, Petitioner
DAVID COLE, ET AL., Respondents
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 Henry C. Anekwu
(“Anekwu”) (A#087618083). Anekwu is an
immigration detainee in the custody of the Department of
Homeland Security/U.S. Immigration and Customs Enforcement
(“DHS/ICE”). He is being detained at the LaSalle
Detention Center in Jena, Louisiana. Anekwu challenges the
legality of his convictions of mail fraud, wire fraud, and
telemarketing fraud. Because Anekwu cannot established that
he meets the requirements of the savings clause of 28 U.S.C.
§ 2255, his petition should be dismissed.
was convicted of mail fraud, wire fraud, and telemarketing
fraud against the elderly. U.S. v. Anekwu, 695 F.3d
967 (9th Cir. 2012). Although Anekwu claims he did not appeal
or file a motion to vacate under § 2255, both Westlaw
and court records indicate that Anekwu did appeal, and his
conviction was affirmed. U.S. v. Anekwu, 695 F.3d
967 (9th Cir. 2012). The United States Supreme Court denied
writs. Anekwu v. U.S., 569 U.S. 989 (2013).
records also indicate Anekwu filed a § 2255 motion in
the court of conviction. Anekwu v. U.S., 03-cr-1151,
2014 WL 12710727 (C.D. Cal. Dec. 3, 2014). The motion was
denied, as was Anekwu's subsequent motion for relief from
judgment. Anekwu v. U.S., 03-cr-1151, 2015 WL
13450806, at *1 (C.D. Cal. Dec. 15, 2015).
§ 2241 petition, Anekwu claims that he “was not
indicted by the grand jury, ” and his indictment was
falsified. (Doc. 1).
Law and Analysis
federal prisoner may challenge his sentence under either
§§ 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.
challenges his conviction based on an allegedly defective
indictment - an alleged error that occurred prior to
sentencing. Thus, Anekwu must proceed under § 2255 in
the court of conviction.
2255(e) 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. This “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). A petitioner bears the burden of
affirmatively proving that the § 2255 remedy is
inadequate. 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).
Fifth Circuit has identified the limited circumstances under
which the savings clause of § 2255 applies. To fall
under the savings clause, 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 at 904. Anekwu
does not allege that he meets any of the requirements of the
savings clause, and he has not identified a retroactively
applicable Supreme Court decision establishing his innocence.
extent Anekwu attempts to challenge his removal order, a
petition for review filed in the appropriate court of appeals
is the exclusive means for judicial review. See 8
U.S.C. § 1252(a)(5); Rosales v. Bureau of
Immigration & Customs Enforcement, 426 F.3d 733, 736
(5th Cir. 2005); Merlan v. Holder, 667 F.3d 538, 539
(5th Cir. 2011) (district court did not have jurisdiction to
review the final removal order pursuant to the provisions of
the REAL ID Act); Castillo-Perales v. Holder, 411
Fed.Appx. 695, 695-696 (5th ...