United States District Court, W.D. Louisiana, Lake Charles Division
KENNETH D. JACKSON REG. # 68790-080
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241 by pro se petitioner
Kenneth D. Jackson. Jackson is an inmate in the custody of
the Bureau of Prisons and is currently incarcerated at the
Federal Correctional Institution 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 petition be DISMISSED WITHOUT PREJUDICE
for lack of jurisdiction.
to a plea agreement, Jackson was convicted in the United
States District Court for the Western District of Texas of
one count of possession with intent to distribute narcotics,
a violation of 21 U.S.C § 841(a). United States v.
Jackson, No. 1:09-cr-00555 (W.D. Tex. Mar. 29, 2018). On
May 24, 2010, he was sentenced to a 180 month term of
imprisonment. Id. at docs. 36, 38. He sought relief
in that court under 28 U.S.C. § 2255, based on
counsel's alleged failure to file a notice of appeal but
voluntarily dismissed that motion without prejudice.
Id. at docs. 53, 54. He filed a motion to reduce
sentence on or about March 14, 2017, which the court
construed as a § 2255 motion. Id. at doc. 62.
The court dismissed that motion under Rule 41(b) of the
Federal Rules of Civil Procedure. Id. at docs. 64,
65. He then filed a “Show Cause Motion to United States
v. Hinkle Relief” on or about February 16, 2018, which
the court also construed as a § 2255 motion.
Id. at doc. 68. Jackson then voluntarily dismissed
that motion. Id. at docs. 71, 72.
then sought relief under 28 U.S.C § 2241, originally
filing the petition in the United States District Court for
the Western District of Texas. Doc. 1. That court transferred
the matter to this district, which has jurisdiction over the
matter. Doc. 3; see Lee v. Wetzel, 244 F.3d 370 (5th
Cir. 2001). Here Jackson claims that he is entitled to relief
based on Descamps v. United States, 133 S.Ct. 2276
(2013), Mathis v. United States, 136 S.Ct. 2243
(2016), and United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), because under Hinkle his
conviction(s) in Texas state court no longer qualify as
controlled substances offenses for the career offender
enhancement of the United States Sentencing Guidelines,
§§ 4B1.1(b) and 4B1.2. Doc. 1, pp. 4-6. He also
brings a claim of ineffective assistance, alleging that
counsel impeded his ability to seek relief through §
2255. Id. at 6-7. He seeks resentencing based on
Hinkle and amendments to the Sentencing Guidelines.
Id. at 7-8.
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 Jackson collaterally attacks
his incarceration, arguing that he has been convicted of a
nonexistent offense. 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, Jackson 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).
relies on Mathis and Hinkle, supra, to show
that he is entitled to proceed under the savings clause. He
uses these cases to attack a sentencing enhancement, however,
rather than allege that he was convicted of a nonexistent
offense. Such a claim cannot satisfy the first prong of the
Reyes-Requena test. Padilla v. United
States, 416 F.3d 424, 427 (5th Cir. 2005); Kinder v.
Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000). Likewise,
Jackson's ineffective assistance claim does not satisfy
Reyes-Requena's first prong, because it relates
only to the impediments counsel allegedly created to
fails to show any right to seek collateral review through a
§ 2241 petition, and so the court lacks jurisdiction to
consider his claims. Christopher v. Miles, 342 F.3d
378, 379 (5th Cir. 2003). He may instead test his claims in
the trial court, under the ...