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Harrell v. McConnell

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

February 5, 2019

KELLY P. HARRELL, Petitioner
v.
CHRIS MCCONNELL, Respondent

          DEE D. DRELL JUDGE

          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) filed by pro se Petitioner Kelly P. Harrell (“Harrell”) (#28802-034). Harrell is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the Federal Correctional Institution in Pollock, Louisiana. Harrell challenges the legality of his sentence.

         Because Harrell cannot meet the requirements of the savings clause of 28 U.S.C. § 2255, his petition should be DISMISSED for lack of jurisdiction.

         I. Background

         Harrell pleaded guilty to possession of a firearm by a convicted felon, possession with intent to distribute a quantity of cocaine base, possession with intent to distribute a quantity of heroin, and possession of a firearm in furtherance of a drug trafficking crime. United States v. Harrell, 540 Fed.Appx. 448 (5th Cir. 2013). The district court determined that Harrell was a career offender under the United States Sentencing Guidelines but, consistent with the written plea agreement, varied from the guidelines range and sentenced Harrell to concurrent 84-month terms of imprisonment on three counts, and 60 months on the fourth count, to run consecutively to the other sentences. Id.

         Harrell filed a motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2), claiming that the application of United States Sentencing Guidelines (“Guidelines”) § 2D1.1(c), as amended by the Sentencing Commission, would lower his total base offense level from 32 to 16. (2:10-cr-055, E.D. La.; Docs. 55, 56). The motion was denied because Harrell's total offense level under the career offender guideline was still 32, and “because this offense level is higher than that calculated under § 2D1.1, the career offender offense level ‘shall apply.'” Harrell, 540 Fed.Appx. at 448-9; U.S.S.G. § 4B1.1(b)(A). Thus, a reduction under § 2D1.1(c) would not lower Harrell's applicable guideline range. Id. Harrell's appeal was dismissed as frivolous. Id.

         Harrell filed a motion to vacate under § 2255, which was denied. (2:10-cr-055, E.D. La.; Doc. 68). Harrell later sought authorization to file a successive § 2255 motion challenging his sentence as a career offender under Johnson v. United States, 135 S.Ct. 2551 (2015). Harrell's request was denied. The court stated:

Although Johnson announced a new rule of constitutional law, it did so with respect to the residual clause of the Armed Career Criminal Act. See Johnson, 135 S.Ct. at 2555-57. Harrell was designated a career offender under § 4B1.1 and the corresponding provisions of U.S.S.G. § 4B1.2. Even if Johnson does apply to the residual clause in § 4B1.2(a)(2), Harrell would not be entitled to relief. Harrell's career offender status was based on his prior Louisiana conviction for armed robbery and his prior federal conviction for possession with intent to distribute heroin, which constitute, respectively, a crime of violence and a controlled substance offense for purposes of the Guidelines. See § 4B1.2(a)(1), (b); United States v. Brown, 437 F.3d 450, 452 (5th Cir. 2006).

(16-30306, 5th Cir.; Doc. 00513530159).

         Harrell, through appointed counsel, filed another request for authorization in the appellate court. (16-30742, 5th Cir.; Doc. 00513571573). Harrell also filed a motion to hold his case in abeyance pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). The Fifth Circuit denied the motion and denied authorization. (16-30742, 5th Cir.; Doc. 00513650060).

         In his § 2241 motion before this Court, as in his requests for authorization, Harrell claims that he is entitled to relief under Johnson. Now, Harrell claims that he is entitled to relief because Johnson was extended by Sessions v. Dimaya, 138 S.Ct. 1204 (2018) and should be extended to Harrell's case.

         II. Law and Analysis A. Harrell cannot meet the requirements of the savings clause.

         A motion under § 2255 is generally used to collaterally attack a federal conviction and sentence. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). A motion under § 2241, in contrast, is generally used to challenge the manner in which a sentence is executed. Id. Harrell's ยง 2241 ...


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