United States District Court, W.D. Louisiana, Lake Charles Division
ANTONIO LEE SMITH REG. # 54872-019
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a petition for writ of habeas corpus [docs. 8,
16] filed pursuant to 28 U.S.C. § 2241 by Antonio Lee
Smith. Smith is an inmate in the custody of the Bureau of
Prisons (“BOP”) and receives mail at the
Residential Reentry Management field office in Atlanta,
Georgia. His petition was filed, however, while he
was incarcerated at the Federal Correctional Institution at
Oakdale, Louisiana (“FCIO”).
matter has been referred to the undersigned in accordance
with the provisions of 28 U.S.C. § 636. For the reasons
stated below, IT IS RECOMMENDED that the
petition be DENIED and DISMISSED
WITHOUT PREJUDICE for lack of jurisdiction.
was convicted in the United States District Court for the
Northern District of Georgia of one count of being a felon in
possession of a firearm, a violation of 18 U.S.C. §
922(g)(1). United States v. Smith, No. 1:03-cr-0418
(N.D.Ga. Mar. 8, 2004). On March 8, 2004, he was sentenced to
an enhanced term under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), of 210
months' imprisonment, which was affirmed by the United
States Court of Appeals for the Eleventh Circuit on June 23,
2005. Id. at docs. 52, 66. He then filed a pro se
§ 2255 motion to vacate in the trial court on October
20, 2006. Id. at doc. 67. The court denied that
motion on February 20, 2007, and the trial court and Eleventh
Circuit both denied Smith's requests for a certificate of
appealability. Id. at docs. 70, 76, 84. Smith then
filed a second pro se § 2255 motion on April 21, 2016,
seeking relief under the Supreme Court's recent decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
Id. at doc. 88. After the Eleventh Circuit granted
him permission to file the second § 2255 motion, Smith
filed an amended motion through counsel. Id. at
docs. 91, 93. No. decision has been rendered yet on that
to pursuing relief through his second § 2255 motion,
however, Smith also asserted his claims under
Johnson through a petition for writ of habeas corpus
filed in the Northern District of Georgia. Smith v.
United States, No. 1:15-cv-2877 (N.D.Ga. Sep. 10, 2015).
The court transferred the case to this district because Smith
was then incarcerated at FCIO, thus establishing our
exclusive jurisdiction over his § 2241 petition. Doc. 2.
Smith was appointed counsel under this court's standard
procedural order for cases seeking relief under
Johnson, and the case was stayed in order to allow
the Office of the Federal Public Defender and the United
States Attorney's Office to submit a proposed resolution
to the case. Docs. 17, 18. On August 22, 2018, the court
lifted the stay and set response/reply deadlines for the
respondent and Smith. Doc. 22. The respondent has answered,
urging that the petition should be dismissed for lack of
jurisdiction and that the claims should instead be litigated
in the pending § 2255 motion in the Northern District of
Georgia. Doc. 23. Smith did not file a reply, and his counsel
instead withdrew on October 18, 2018. Docs. 24, 25.
Accordingly, the matter is now ripe for review.
§ 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 error based on his sentencing enhancement under
§ 924(e). 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).
respondent does not challenge that Johnson may
provide some avenue for relief to Smith under his pending
motions in Georgia. Instead it asserts that Smith cannot show
that § 2255 is “inadequate or ineffective”
because he currently has Johnson claims pending
through his § 2255 motions filed in the Northern
District of Georgia. Doc. 23, p. 7. Accordingly, it
maintains, this petition should instead be construed as
another § 2255 motion improperly filed in this court.
Id. Additionally, the respondent asserts, Smith
cannot satisfy ...