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Carreno v. Warden

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

September 12, 2018

ROBERT CARRENO, JR., Petitioner
v.
WARDEN, 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 Robert Carreno, Jr. (“Carreno”) (#84477-280). Carreno is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the United States Penitentiary in Pollock, Louisiana. Carreno challenges the legality of his sentence imposed in the United States District Court for the Western District of Texas.

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

         I. Background

         Carreno entered a guilty plea to conspiracy to distribute one kilogram or more of heroin. Carreno v. United States, 11-cv-836, 2014 WL 4385947, at *1 (W.D. Tex. July 16, 2014). Carreno was sentenced to an agreed-upon term of 300 months, in accordance with a plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Id. Carreno did not appeal. Id.

         Carreno filed a motion to vacate under 28 U.S.C. § 2255, which was denied. Id., report and recommendation adopted, 11-cr-836, 2014 WL 4385950 (W.D. Tex. Aug. 28, 2014).

         Carreno filed a motion to reduce sentence under amendments to the sentencing guidelines. The court entered an electronic order denying the motion, noting: “The Defendant was sentenced under a binding plea agreement. Accordingly, he is not eligible for a sentence reduction under section 3582 Amendments 782 and 788.” (5:11-cr-00836, W.D. Tex.).

         Carreno recently filed a renewed motion to reduce his sentence, which is pending in the Western District of Texas. (5:11-cr-00836, W.D. Tex.).

         In his § 2241 petition, Carreno claims he is entitled to challenge his conviction under Mathis v. United States, 136 S.Ct. 2243 (2016).

         II. Law and Analysis

         A. Carreno does not meet the requirements of the savings clause.

         Carreno 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).

         The Fifth Circuit has identified the limited circumstances under which the savings clause of § 2255 applies. A petitioner must demonstrate that: (1) his claims are based on a retroactively applicable Supreme Court decision, which establishes that he may have been convicted of a nonexistent offense; and (2) his claims were foreclosed by circuit law at the time when the claims should have been ...


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