United States District Court, W.D. Louisiana, Lake Charles Division
ROBERT BANKS REG. # 05834-025
WARDEN FEDERAL CORRECTIONAL INSTITUTE
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court is a pro se petition for writ of habeas corpus
filed under 28 U.S.C. § 2241 by Robert Banks, who is an
inmate in the custody of the Bureau of Prisons and is
currently incarcerated at the Federal Correctional Institute
at Oakdale, Louisiana. This matter is before us for initial
review under 28 U.S.C. § 636 and the standing orders of
procedural history of Banks's attempts to obtain
post-conviction relief, following his 2004 conviction of
numerous drug trafficking crimes in the United States
District Court for the Southern District of Illinois and
based on his challenge to a prior conviction sentencing
enhancement under 21 U.S.C. § 851, is provided in this
court's review of his prior § 2241 petition. See
Banks v. Johnson, 2017 WL 9471846 (W.D. La. Sep. 14,
2017). In that case we determined that Banks could not
proceed under § 2241 because he failed to satisfy the
savings clause of 28 U.S.C. § 2255(e), as described
below. He again seeks relief from his § 851 sentencing
enhancement, relying this time on Welch v. United
States, 136 S.Ct. 1257 (2016), and preceding Supreme
Screening of Habeas Corpus Petitions
district court may apply any and all of the rules governing
habeas petitions filed under 28 U.S.C. § 2254 to those
filed under § 2241. See Rule 1(b), Rules
Governing § 2254 Cases in the United States District
Courts. Rule 4 of the Rules Governing § 2254 Cases
authorizes preliminary review of such petitions, and states
that they must be summarily dismissed “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Id. at
Rule 4. To avoid summary dismissal under Rule 4, the petition
must contain factual allegations pointing to a “real
possibility of constitutional error.” Id. at
Rule 4, advisory committee note (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly,
we review the pleadings and exhibits before us to determine
whether any right to relief is indicated, or whether the
petition must be dismissed.
§ 2241 petition on behalf of a sentenced prisoner
“attacks the manner in which a sentence is carried out
or the prison authorities' determination of its
duration.” Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). In order to prevail, a § 2241
petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3).
alleges an error at sentencing. Such attacks are generally
limited to a motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. Jeffers v. Chandler,
253 F.3d 827, 830 (5th Cir. 2001); Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000). A § 2241
petition is properly construed as a § 2255 motion if it
seeks relief based on errors that occurred at trial or
sentencing. Tolliver, 211 F.3d at 877-78. Habeas
relief based on a collateral attack to a federal conviction
is only appropriate under § 2241 if the petitioner can
satisfy § 2255's “savings clause.” The
savings clause of 28 U.S.C § 2255 permits a petitioner
to seek habeas relief under § 2241 when the
remedy provided under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). “A § 2241 petition is not,
however, a substitute for a motion under § 2255, and the
burden of coming forward with evidence to show the inadequacy
or ineffectiveness of a motion under § 2255 rests
squarely on the petitioner.” Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The fact
that a prior motion was unsuccessful, or that the petitioner
is unable to meet the statute's second or successive
requirement, does not make § 2255 inadequate or
ineffective. Id. Instead, the petitioner must
demonstrate the following to satisfy § 2255's
savings clause: (1) that his claim is based on a
retroactively applicable Supreme Court decision establishing
that he may have been convicted of a nonexistent offense,
and (2) that his claim was foreclosed by
circuit law at the time when it should have been raised in
his trial, appeal, or first § 2255 motion.
Reyes-Requena v. United States, 243 F.3d 893, 903-04
(5th Cir. 2001).
support of his right to proceed under the savings clause,
Banks relies on Welch v. United States, 136 S.Ct.
1257 (2016), in which the court held that Johnson v.
United States, 135 S.Ct. 2551 (2015), is retroactively
applicable on collateral review. The Seventh Circuit has
already rejected a prior attempt to proceed under § 2255
based on Johnson, which considered sentencing
enhancements under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). United States v. Banks, No.
4:03-cr-40019, doc. 163 (S.D. Ill. Aug. 11, 2005).
Additionally, as the Fifth Circuit has repeatedly emphasized,
the savings clause only relates to “[conviction] of a
nonexistent offense” - not to innocence of a sentencing
enhancement. Maddox v. Maye, 455 Fed.Appx. 435, 437
(5th Cir. 2011) (unpublished) (citing Kinder v.
Purdy, 222 F.3d 209, 213 (5th Cir. 2000)). Banks does
not claim to be innocent of any of the federal ...