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Freeman v. McConnell

United States District Court, W.D. Louisiana, Alexandria Division

August 7, 2018

WILLIAM BERNARD FREEMAN, Petitioner
v.
CHRIS MCCONNELL, Respondent

          JAMES JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before 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.

         Because Freeman cannot meet the requirements of the savings clause, his petition should be dismissed for lack of jurisdiction.

         I. Background

         In 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 United States v. Freeman, 451 Fed.Appx. 783, 785 (10th Cir. 2011) (unpublished).

         Freeman filed a § 2255 motion, which was denied. See United States v. Freeman, 697 Fed.Appx. 605 (10th Cir. 2017).

         The 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).

         In 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. Id.

         Freeman 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 § 2255.

         II. Law and Analysis

         A. Freeman cannot meet the requirements of the savings clause.

         Freeman 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. 1979).

         The 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 ...


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