United States District Court, W.D. Louisiana, Alexandria Division
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 William Bernard
Freeman (“Freeman”) (#25555-064). Freeman is an
inmate in the custody of the Federal Bureau of Prisons
(“BOP”), incarcerated at the Federal Correctional
Institution in Pollock, Louisiana. Freeman challenges the
calculation of his sentence by the BOP.
Freeman cannot meet the requirements of the savings clause,
his petition should be dismissed for lack of jurisdiction.
2011, Freeman was convicted of bank robbery in federal court.
Freeman's sentence was enhanced under the United States
Sentencing Guidelines because Freeman had “two prior
qualifying felony convictions of either a crime of violence
or a controlled substance offense.” Freeman's
advisory guidelines range was 210 to 240 months of
imprisonment. The district court imposed a sentence of 210
months. The United States Court of Appeals for the Tenth
Circuit affirmed the sentence. United States v.
Freeman, 451 Fed.Appx. 783, 785 (10th Cir. 2011)
filed a § 2255 motion, which was denied. See United
States v. Freeman, 697 Fed.Appx. 605 (10th Cir. 2017).
Tenth Circuit authorized Freeman to file a successive §
2255 motion because the relevant language of the sentencing
guidelines defining “crime of violence” included
a residual clause identical to that contained in the Armed
Career Criminal Act (the “ACCA”). In Johnson
v. United States, 135 S.Ct. 2551, 2563 (2015), the
Supreme Court declared that provision of the ACCA
unconstitutionally vague. The district court abated
proceedings pending the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017).
Beckles, the Supreme Court held that the Sentencing
Guidelines are not subject to vagueness challenges under the
Due Process Clause. Id. at 890. Based on
Beckles, the district court denied Freeman's
§ 2255 motion. United States v. Freeman, 697
Fed.Appx. 605-606 (10th Cir. 2017). The Tenth Circuit agreed
that “a Johnson claim challenging a sentence
imposed under U.S.S.G. § 4B1.2, including Freeman's
sentence, is squarely foreclosed by Beckles.”
Id. (citing Beckles, 137 S.Ct. at 892).
Therefore, a certificate of appealability was denied.
has now filed another § 2241 petition, claiming that
Johnson was extended by Sessions v. Dimaya,
138 S.Ct. 1204 (2018). Freeman argues that Dimaya
entitles him to relief under the savings clause of §
Law and Analysis
Freeman cannot meet the requirements of the savings
seeks to proceed 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 v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). 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 rests with the petitioner.
See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
Fifth Circuit has identified the limited circumstances under
which the savings clause of § 2255 applies. A petitioner
must demonstrate that: (1) his claims are based on a
retroactively applicable Supreme Court decision, which
establishes that he may have been convicted of a nonexistent
offense; and (2) his claims were foreclosed by circuit law at
the time when the claims should have been ...