United States District Court, W.D. Louisiana, Alexandria Division
KELLY P. HARRELL, Petitioner
CHRIS MCCONNELL, Respondent
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) 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.
Harrell cannot meet the requirements of the savings clause of
28 U.S.C. § 2255, his petition should be DISMISSED for
lack of jurisdiction.
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.
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
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).
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).
§ 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.
Law and Analysis A. Harrell
cannot meet the requirements of the savings
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 § 2241 ...