United States District Court, W.D. Louisiana, Lake Charles Division
MIGUEL GLAZE REG. # 04078-104
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is the pro se petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 by Miguel Glaze.
Glaze 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 the
reasons stated below, IT IS RECOMMENDED that the action be
DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
to a plea agreement, Glaze was convicted on February 24,
2014, in the United States District Court for the Southern
District of Florida of one count of conspiracy to and attempt
to possess with intent to distribute cocaine. United
States v. Kerr et al., No. 0:13-cr-60255(4), docs.
101-03 (S.D. Fla. Jul. 3, 2014). He was then sentenced to a
120 month term of imprisonment. Id. at docs. 149,
150. On September 22, 2014,  he filed a motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b),
which the court denied summarily based on the fact that Rule
60(b) could not provide relief from judgment in a criminal
case. Id. at docs. 175, 176. He then sought review
in the United States Eleventh Circuit Court of Appeals which
vacated the district court's judgment and remanded the
matter for consideration under 28 U.S.C. § 2255.
Id. at doc. 202. Pursuant to the Eleventh
Circuit's mandate, a new § 2255 motion was opened.
Glaze v. United States, No. 0:15-cv-61479, doc. 1
(S.D. Fla. Aug. 30, 2017). Glaze then filed an amended pro se
§ 2255 motion on December 16, 2015, and the court
ordered a response from the government. Id. at docs.
13, 18. On August 30, 2017, the district court then adopted
the report and recommendation of the magistrate judge, denied
the § 2255 motion, and denied a certificate of
appealability from that judgment. See Id. at docs.
now seeks relief in this court under 28 U.S.C § 2241,
arguing that his conviction should be overturned because of
the involvement of government agents in the conspiracy. Doc.
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 Glaze collaterally attacks
his conviction, arguing that he has been convicted of a
nonexistent offense or that the evidence was insufficient to
support his conviction. Therefore, his claim should be
advanced in a motion to vacate.
savings clause of 28 U.S.C § 2255 permits a petitioner
to seek habeas relief under § 2241 when the
remedy provided under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). “A § 2241 petition is not,
however, a substitute for a motion under § 2255, and the
burden of coming forward with evidence to show the inadequacy
or ineffectiveness of a motion under § 2255 rests
squarely on the petitioner.” Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The fact
that a prior motion was unsuccessful, or that the petitioner
is unable to meet the statute's second or successive
requirement, does not make § 2255 inadequate or
ineffective. Id. Instead, Glaze must demonstrate the
following to satisfy § 2255's savings clause: (1)
that his claim is based on a retroactively applicable Supreme
Court decision establishing that he may have been convicted
of a nonexistent offense, and (2) that his claim was
foreclosed by circuit law at the time when it should have
been raised in his trial, appeal, or first § 2255
motion. Reyes-Requena v. United States, 243 F.3d
893, 903-04 (5th Cir. 2001).
only Supreme Court decision cited by Glaze which post-dates
his conviction, let alone his amended § 2255 motion, is
Mathis v. United States, 136 S.Ct. 2243 (2016).
However, Mathis related to the qualification of
convictions as predicate violent felonies under the Armed
Career Criminal Act, 18 U.S.C. § 924(e), which has no
relevance to Glaze's conviction. Furthermore, Glaze only
cites that decision for the dictum, “Elements are the
constituent parts of a crime's legal definition-the
things the prosecution must prove to sustain a
conviction.” Mathis, 136 S.Ct. at 2248
(internal quotations omitted). This general definition does
not render conspiracy/attempt to possess with intent to
distribute narcotics a nonexistent offense. Likewise, the
circuit decisions cited by petitioner do not contain a
Supreme Court ...