United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL
REPORT AND RECOMMENDATION
H. L. PEREZ-MONTES MAGISTRATE JUDGE
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.
Peterson cannot meet the requirements of the savings clause
of 28 U.S.C. § 2255, his petition should be dismissed
for lack of jurisdiction.
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).
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).
Law and Analysis
Peterson 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.
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).
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.
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).
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 ...