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 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.
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.
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.
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,
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.).
recently filed a renewed motion to reduce his sentence, which
is pending in the Western District of Texas. (5:11-cr-00836,
§ 2241 petition, Carreno claims he is entitled to
challenge his conviction under Mathis v. United
States, 136 S.Ct. 2243 (2016).
Law and Analysis
Carreno does not 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.
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 ...