United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES, UNITED STATES MAGISTRATE JUDGE
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.
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
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).
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).
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).
§ 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.
Law and Analysis
Harris 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 petition challenges the length of
his sentence, not its execution.
§ 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).
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, ...