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Harris v. Johnson

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

February 14, 2019

ANDRE HARRIS, Petitioner
v.
CALVIN JOHNSON, 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 Under 28 U.S.C. § 2241 filed by pro se Petitioner Andre Harris (“Harris”) (#31899-034). (Doc. 1). Harris is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the United States Penitentiary in Pollock, Louisiana. Harris challenges the legality of his sentence imposed in the United States District Court for the Eastern District of Louisiana.

         Because Harris cannot meet the requirements of 28 U.S.C. § 2255(e), his habeas petition (Doc. 1) should be DISMISSED for lack of jurisdiction WITH PREJUDICE as to the jurisdictional issue, and WITHOUT PREJUDICE as to the merits of Harris's claim.

         I. Background

         Harris was convicted of: “(1) conspiracy to possess with intent to distribute crack cocaine; (2) conspiracy to possess firearms in furtherance of a drug-trafficking crime; (3) possession with intent to distribute crack cocaine; and (4) possession of firearms in furtherance of the drug-trafficking crimes listed above.” United States v. Harris, 740 F.3d 956, 959 (5th Cir. 2014). Harris was sentenced to 181 months of imprisonment. Harris's conviction and sentence were affirmed on appeal, and the United States Supreme Court denied writs. Harris v. United States, 135 S.Ct. 54 (2014).

         Harris filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §2255. (No. 2:10-CR-0285, E.D. La.; Doc. 184). Harris argued that the sentencing court relied upon the residual clause of 18 U.S.C. § 924(e) in imposing Harris's sentence, and the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), mandates that Harris be resentenced without an enhancement. (No. 2:10-CR-0285, E.D. La.; Doc. 184). The court denied the motion because Harris was found guilty of possession of a firearm in furtherance of a drug trafficking crime under § 924(c)(1)(A). The court concluded that, because Harris was not sentenced pursuant to § 924(e)'s residual clause, Johnson was inapplicable. (No. 2:10-CR-0285, E.D. La.; Doc. 200).

         Harris filed another motion to vacate, which was transferred to the United States Court of Appeals for the Fifth Circuit. Harris asserted that Burrage v. United States, 571 U.S. 204 (2014), Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), were new rules of law applicable to his case. (No. 2:10-CR-0285, E.D. La.; Doc. 211). The motion was denied because Harris did not make the requisite prima facie showing under §§ 2244(b)(3)(C) and 2255(h) for authorization to file a second or successive application. (No. 2:10-CR-0285, E.D. La.; Doc. 211).

         In his § 2241 petition before this Court, Harris claims that he was denied effective assistance of counsel because his attorney did not object to the Indictment. (Doc. 1, p. 7). Harris also claims the Government denied him the right to be indicted by a grand jury as to 28 grams of cocaine base, and that the court miscalculated his guideline range. (Doc. 1, p. 7).

         II. Law and Analysis

         A. Harris 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 § 2241 petition challenges the length of his sentence, not its execution.

         Section § 2255 contains a savings clause, which provides a limited exception to the rule that a § 2241 petition may not be used to challenge the validity of a federal sentence and conviction. See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). The savings clause allows a prisoner to rely on § 2241 if the remedy available under § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). 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).

         To state a claim under the savings clause, a petitioner must show that the claim is based on a retroactively applicable Supreme Court decision that establishes the petitioner may have been convicted of a nonexistent offense, and the claim was foreclosed by circuit law at the time it should have been raised in the petitioner's trial, appeal, ...


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