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
Michael Wayne Kibble (“Kibble”) (#11824-041).
Kibble is an inmate in the custody of the Federal Bureau of
Prisons (“BOP”), incarcerated at the Federal
Correctional Institution in Pollock, Louisiana. Kibble
challenges the legality of his sentence.
Kibble cannot meet the requirements of the savings clause of
28 U.S.C. § 2255, his Petition (Doc. 1) should be
DISMISSED for lack of jurisdiction.
pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). (No. 15-cr-257, D.
Minn.). He was sentenced to the mandatory minimum of 180
months of imprisonment under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1). (No.
15-cr-257, D. Minn.; Doc. 41).
time of the offense, Kibble was on supervised release in
Minnesota for two federal convictions for “Aiding and
Abetting Hobbs Act Robbery” and “Aiding and
Abetting the Use of a Firearm in a Crime of Violence.”
(No. 15-cr-257, D. Minn.; Doc. 35). According to the
Pre-Sentence Report, Kibble's criminal history consisted
of eight qualifying predicate ACCA convictions-the two
federal convictions in the District of Minnesota, as well as
six Minnesota first-degree aggravated robbery convictions.
(No. 15-cr-257, D. Minn.; Doc. 35). In the plea agreement,
Kibble stipulated that he had at least three prior
convictions for a “violent felony, ” as defined
by § 924(e)(2)(B), and was subject to an enhanced
sentence under § 924(e) as an armed career criminal.
(No. 15-cr-257, D. Minn.; Doc. 21, p. 3).
on Mathis v. United States, 136 S.Ct. 2243 (2016),
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), Kibble
now argues that his prior state convictions for aggravated
robbery are not predicate offenses under the ACCA. (Doc. 1).
Law and Analysis
seeks to proceed under the savings clause of § 2255(e),
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, or first §
2255 motion. Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001).
law forbids certain people-such as convicted felons, persons
committed to mental institutions, and drug users-to ship,
possess, and receive firearms. 18 U.S.C. § 922(g).
Offenders may be sentenced to a term of imprisonment of up to
10 years. 18 U.S.C. § 924(a)(2). However, if the
offender has three or more earlier convictions for a
“serious drug offense” or a “violent
felony, ” the ACCA increases the prison term to a
minimum of 15 years and a maximum of life. 18 U.S.C. §
ACCA defines “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year . .
. that- (i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” § 924(e)(2)(B); Johnson, 135
S.Ct. at 2555-56.
(i) of the ACCA is known either as the “force clause,
” United States v. Lerma, 877 F.3d 628, 630
(5th Cir. 2017), or as the “elements clause, ”
United States v. Taylor, 873 F.3d 476, 477 n.1 (5th
Cir. 2017). The four offenses listed in subsection (ii) are
referred to as the “enumerated offenses, ”
see United States v. Davis, 487 F.3d 282, 285 (5th
Cir. 2007), or collectively as the “enumerated offenses
clause, ” Taylor, 873 F.3d at 477 n.1. The
remainder of the subsection is known as the “residual
clause.” Johnson, 135 S.Ct. 2555-56.
Johnson, the Supreme Court found the residual clause
of the ACCA unconstitutionally vague. In Dimaya, the
Supreme Court held that the definition of “crime of
violence” in the residual clause of 18 U.S.C. §
16, which closely resembled the definition of “violent
felony” in the residual clause of the ACCA, was also
unconstitutionally vague. Dimaya, 138 S.Ct. at 1210.
After Johnson, a crime is a violent felony under
ACCA only if it is one of the enumerated ...