United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL
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) (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.
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
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
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.
Law and Analysis
Queen cannot proceed under § 2241.
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).
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.
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).
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.
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 ...