United States District Court, W.D. Louisiana, Lake Charles Division
JEREMY RAY ROBERTS REG. # 10714-003
D. CAIN, JR. JUDGE
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a pro se petition for writ of habeas
corpus filed under 28 U.S.C. § 2241 by Jeremy Ray
Roberts (Roberts) who is an inmate in the custody of the
Bureau of Prisons and is currently incarcerated at the
Federal Correctional Institute at Oakdale, Louisiana. This
matter is before us for initial review under 28 U.S.C. §
636 and the standing orders of this court.
25, 2009, Roberts was indicted in the United States District
Court for the Southern District of Alabama on one count of
conspiracy to manufacture 50 grams or more of
methamphetamine, a violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(B), one count of attempt to manufacture
50 grams or more of methamphetamine, a violation of 21 U.S.C.
§§ 841 (a)(1) and (b)(1)(B), three counts of
possession of a List I Chemical with knowledge and reasonable
cause to believe that it would be used to manufacture a
controlled substance, a violation of 21 U.S.C. §
841(c)(2), and one count of possession with intent to
distribute methamphetamine, a violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. United States v.
Roberts, No. 1:09-cr-0140, doc. 1 (S.D. Ala. June 25,
2009). On July 15, 2009, the government filed Information to
Establish Prior Conviction with the intent to seek enhanced
penalties pursuant to 21 U.S.C. § 851. Id. at
doc. 10. Pursuant to a plea agreement, Roberts was convicted
of count one, conspiracy to manufacture 50 grams or more of
methamphetamine. Id. at docs. 34. A sentencing
hearing was held on May 20, 2010, at which Roberts was
sentenced to a 216 month term of imprisonment. Id.
at doc. 97.
appealed his conviction and sentence to the United States
Court of Appeals for the Eleventh Circuit, which considered
appellate counsel's Anders brief. It then denied
relief and granted appellate counsel's motion to
withdraw. United States v. Roberts, 413 Fed.
App'x 222 (11th Cir. 2011). Roberts did not file a
petition for writ of certiorari in the United States Supreme
Court, and instead pursued relief through post-conviction
motions in the trial court.
filed a pro se motion to vacate under 28 U.S.C.
§ 2255 on July 14, 2017, asserting that his sentence was
excessive and seeking to have it modified based upon the
United States Supreme Court's rulings in Dean v.
United States, 137 S.Ct. 1170 (2007) and Johnson v.
United States, 135 S.Ct. 2251 (2015). United States
v. Roberts, No. 1:09-cr-140-001, doc. 127 (S.D. Ala.
July 24, 2017). Plaintiff was ordered to re-file his petition
on the form required by the court. Id. at doc. 128.
He failed to do so, and, accordingly, his motion was
dismissed without prejudice for failure to comply with the
court's order. Id. at doc. 133. He has also
filed in his original proceeding a motion for sentence
reduction under 18 U.S.C. § 3582, based on subsequent
amendments to the United States Sentencing Guidelines. .
Id. at doc. 135. That motion is currently pending
Roberts now brings the instant petition for habeas relief
under 28 U.S.C. § 2241, asserting that he is entitled to
relief under § 2255's savings clause based on the
Supreme Court's recent decisions in Descamps v.
United States, 133 S.Ct. 2276 (2013), Mathis v.
United States, 136 S.Ct. 2243 (2016), and United
States v. Davis, 720 F.3d 215 (4th Cir. 2013), and their
impacts on sentencing enhancements he received based on prior
convictions. Doc. 1, att. 2, p. 12.
Law & Analysis
Screening of Habeas Corpus Petitions
district court may apply any and all of the rules governing
habeas petitions filed under 28 U.S.C. § 2254 to those
filed under § 2241. See Rule 1(b), Rules
Governing § 2254 Cases in the United States District
Courts. Rule 4 of the Rules Governing § 2254 Cases
authorizes preliminary review of such petitions, and states
that they must be summarily dismissed “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Id. at
Rule 4. To avoid summary dismissal under Rule 4, the petition
must contain factual allegations pointing to a “real
possibility of constitutional error.” Id. at
Rule 4, advisory committee note (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly,
we review the pleadings and exhibits before us to determine
whether any right to relief is indicated, or whether the
petition must be dismissed.
§ 2241 petition on behalf of a sentenced prisoner
“attacks the manner in which a sentence is carried out
or the prison authorities' determination of its
duration.” Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). In order to prevail, a § 2241
petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3).
alleges an error at sentencing. Such attacks are generally
limited to a motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. Jeffers v. Chandler,
253 F.3d 827, 830 (5th Cir. 2001); Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000). A § 2241
petition is properly construed as a § 2255 motion if it
seeks relief based on errors that occurred at trial or
sentencing. Tolliver, 211 F.3d at 877-78. Habeas
relief based on a collateral attack to a ...