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 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.
Rainwater cannot meet the requirements of the savings clause,
his petition should be dismissed for lack of jurisdiction.
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9 (5th Cir. 2006) (unpublished).
Law and Analysis
Rainwater 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.
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
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.
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