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Rainwater v. McConnell

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

August 8, 2018

DERRICK DAMON RAINWATER, Petitioner
v.
CHRIS MCCONNELL, Respondent

          DRELL, 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 Derrick Damon Rainwater (“Rainwater”) (#25805-077). Rainwater is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the Federal Correctional Institution in Pollock, Louisiana. Rainwater challenges the legality of his sentence.

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

         I. Background

         In 1994, Rainwater was convicted of six counts of interfering with commerce by robbery in violation of 18 U.S.C. § 1951(a), and five counts of using and carrying a firearm during a crime of violence and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1) and (2). United States v. Rainwater, 3-10-CV-2017-D, 2010 WL 4340264, at *1 (N.D. Tex. Oct. 12, 2010), report and recommendation adopted, 3-10-CV-2017-D, 2010 WL 4284923 (N.D. Tex. Oct. 28, 2010). Rainwater was sentenced to concurrent terms of 108 months of imprisonment for the six robbery counts; a consecutive term of 60 months for count two; and consecutive terms of 240 months for each of counts five, seven, nine, and 11. Rainwater's concurrent sentences for the six robbery counts were subsequently reduced to 97 months, bringing his total sentence to 1, 117 months of imprisonment. Rainwater v. Werlich, 647 Fed.Appx. 496, 497 (5th Cir. 2016). Rainwater has attempted to pursue several 28 U.S.C. § 2255 challenges to his sentence. E.g., In re: Derrick D. Rainwater, No. 06-10632, Doc. No. 9 (5th Cir. 2006) (unpublished).

         II. Law and Analysis

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

         Rainwater 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).

         As the United States Court of Appeals for the Fifth Circuit stated in one of Rainwater's prior cases:

Our circuit has established a three-part test to determine the applicability of the savings clause. Accordingly, Rainwater's § 2241 petition must: raise a claim “that is based on a retroactively applicable Supreme Court decision”; that claim “was foreclosed by circuit law at the time when [it] should have been raised in [Rainwater's] trial, appeal or first § 2255 motion”; and, that retroactively applicable decision “establishes that [Rainwater] may have been convicted of a nonexistent offense”. Reyes-Requena, 243 F.3d at 904.

Rainwater v. Werlich, 647 Fed.Appx. 496, 497-98 (5th Cir. 2016).

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court invalidated the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), which defined a “violent felony” as one involving “conduct that presents a serious potential risk of physical injury to another.” Id. at 2563.

         Rainwater claims that Johnson was expanded by Sessions v. Dimaya, 138 S.Ct. 1204 (2018). In Dimaya, the Supreme Court held that the definition of “crime of violence” in 18 U.S.C. § 16(b), as incorporated in the Immigration and Nationality Act, is unconstitutionally vague. Id. Rainwater concludes that, because § 924(c)(3)(B) is “materially identical” to the ...


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