Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peterson v. Warden

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

September 12, 2018

MICKEY ALEXANDER PETERSON, Petitioner
v.
WARDEN, Respondent

          JUDGE DEE D. DRELL

          REPORT AND RECOMMENDATION

          JOSEPH H. L. PEREZ-MONTES MAGISTRATE JUDGE

         Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2241) filed by pro se Petitioner Mickey Alexander Peterson (“Peterson”) (#53883-019). Peterson is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the United States Penitentiary in Pollock, Louisiana. Peterson challenges the legality of his sentence.

         Because Peterson cannot meet the requirements of the savings clause of 28 U.S.C. § 2255, his petition should be dismissed for lack of jurisdiction.

         I.Background

         Peterson was convicted of two counts of bank robbery by force or violence in violation of 18 U.S.C. § 2113(a) and (d), and possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Peterson was sentenced to a total term of 300 months of imprisonment. (Doc. 1-2, p. 3).

         Peterson claims that he is entitled to proceed under the savings clause of 28 U.S.C. § 2255(e) based on Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Peterson argues that his bank robbery convictions are not crimes of violence, so his conviction under § 924(c) is “null and void.” (Doc. 1-2, p. 9).

         II. Law and Analysis

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

         Peterson 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).

         To state a claim under the savings clause, a petitioner must show that the claim is based on a retroactively applicable Supreme Court decision that establishes the petitioner may have been convicted of a nonexistent offense, and the claim was foreclosed by circuit law at the time it should have been raised in the petitioner's trial, appeal, or first § 2255 motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

         In Johnson, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act of 1984 (“ACCA”), 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.” Johnson, 135 S.Ct. at 2563.

         Peterson claims that Johnson was expanded by Dimaya. 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. Dimaya, 138 S.Ct. at 1210. Peterson concludes that, because § 924(c)(3)(B) is “materially identical” to the crime of violence definition under § 16(b), then § 924(c)(3)(B) is also unconstitutional. (Doc. 1, p. 7).

         First, Johnson does not directly apply to Peterson's conviction or sentence because Peterson was sentenced pursuant to § 924(c), not the ACCA, § 924 (e). Next, to the extent Peterson claims his § 924(c) conviction is void for vagueness and should be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.