Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Queen v. Johnson

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

January 24, 2019

NICHOLAS QUEEN, Petitioner
v.
C. J. JOHNSON, Respondent

          JUDGE DEE D. DRELL

          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) (Doc. 1, 5) filed by pro se Petitioner Nicholas Queen (“Queen”) (#29623-037). Queen is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the United States Penitentiary in Pollock, Louisiana. Queen challenges the legality of his sentence imposed in the United States District Court for the District of Maryland.

         Because Queen is not challenging the manner in which his sentence is being executed or the prison authorities' determination of its duration, and he cannot show that 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention, Queen's petition should be DISMISSED for lack of jurisdiction.

         I. Background

         Queen is serving a 562-month term of imprisonment for his convictions of two counts of bank robbery by intimidation, two counts of armed bank robbery, and two counts of carrying a firearm during the commission of a crime of violence. United States v. Queen, 73 F.3d 359 (4th Cir. 1995). Queen's conviction and sentence were affirmed. Id.

         Queen has filed numerous challenges to his conviction. In 2016, the United States Court of Appeals for the Fourth Circuit granted Queen authorization to file a successive motion under 28 U.S.C. § 2255. (No. 1:93-cr-00366, D. Md., Doc. 300). The court found that Queen “made a prima facie showing that the new rule of constitutional law announced in Johnson v. United States, 135 S.Ct. 2551 (2015), and held to apply retroactively to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016), may apply to his case.” Id. The § 2255 motion remains pending in the District of Maryland.

         II. Law and Analysis

         A. Queen cannot proceed under § 2241.

         A federal prisoner may challenge his sentence under either 28 U.S.C. §§ 2241 or 2255. Though closely related, these two provisions are “distinct mechanisms for seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A § 2241 petition may be filed by a prisoner challenging the manner in which his sentence is being executed or the prison authorities' determination of its duration. See Reyes-Requena v. U.S., 243 F.3d 893, 900-01 (5th Cir. 2001); Pack, 218 F.3d at 451. The proper venue for such a challenge is the district in which the prisoner is incarcerated. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (citing Pack, 218 F.3d at 451).

         In contrast, a § 2255 motion should be used to vacate, set aside, or correct a sentence based on errors that occurred at or prior to sentencing. See Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citing United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980)). A § 2255 motion “provides the primary means of collateral attack on a federal sentence” and must be filed in the court that issued the contested sentence. See Cox, 911 F.2d at 1113.

         Queen is not challenging the manner in which his sentence is being executed or the prison authorities' determination of its duration. Therefore, Queen can only proceed under § 2241 if he can show that § 2255 is inadequate or ineffective to challenge his conviction or sentence. See 28 U.S.C. § 2255(e); Pack, 218 F.3d at 452. 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).

         The Fifth Circuit has identified the limited circumstances under which the savings clause of § 2255(e) applies. To fall under the savings clause, a petitioner must demonstrate that: (1) his claim is based on a retroactively applicable Supreme Court decision; (2) the Supreme Court decision establishes that he was “actually innocent” of the charges against him because the decision decriminalized the conduct for which he was convicted; and (3) his claim would have been foreclosed by existing circuit precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition. See Reyes-Requena, 243 F.3d at 904.

         First, Queen cannot show that § 2255 is inadequate to challenge his sentence. Queen was granted authorization to file a successive § 2255 motion, and Queen's motion remains pending in the court of conviction. Moreover, Queen acknowledges that his claim is not based on a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.