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Lewis v. McConnell

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

September 12, 2018

DARREN G. LEWIS, Petitioner
v.
CHRIS MCCONNELL, Respondent

          DEE D. 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 Darren G. Lewis (“Lewis”) (#26788-034). Lewis is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the Federal Correctional Institution in Pollock, Louisiana. Lewis challenges the legality of his sentence.

         Because Lewis 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

         Lewis entered a guilty plea to three counts of interfering with commerce by committing robbery, in violation of 18 U.S.C. § 1951 (“Hobbs Act robbery”), and one count of brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The Court sentenced him to prison for an aggregate term of 324 months. Lewis v. United States, 3:13-CR-338, 2017 WL 3896371, at *1 (N.D. Tex. Aug. 16, 2017), report and recommendation adopted, 3:13-CR-338, 2017 WL 3868281 (N.D. Tex. Sept. 5, 2017). Lewis did not appeal. Id.

         Lewis filed a motion to vacate or correct an illegal sentence under 28 U.S.C. § 2255, raising four claims: (1) Lewis's due process rights were violated when he was convicted under section 924(c), which he asserts was invalidated under the reasoning set forth in Johnson v. United States, 135 S.Ct. 2551 (2015); (2) the court made an example out of him because he was, at one time, a professional athlete; (3) the evidence was insufficient to prove he committed the charged offenses; and (4) he pleaded guilty without understanding the consequences of that plea. Id. The district court found that Lewis's motion was untimely, and that § 2255(f)(3) was inapplicable. Id. at 2.

         In his § 2241 petition, Lewis claims that his sentence is unlawful under Johnson and Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

         II. Law and Analysis

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

         Lewis 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 petitioner bears the burden of affirmatively proving that the § 2255 remedy is inadequate. 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).

         Lewis argues that he may proceed under the savings clause because Johnson and Dimaya render his sentence invalid. In Johnson, 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.” Johnson, 135 S.Ct. at 2563.

         Lewis 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, ...


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