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Acevedo v. Martin

United States District Court, Fifth Circuit

October 8, 2013

MICHAEL ACEVEDO, #XXXXX-XXX, Petitioner,
v.
MARK MARTIN, WARDEN, FCC-Yazoo City (Medium), Respondent.

MEMORANDUM OPINION AND ORDER

DAVID BRAMLETTE, District Judge.

This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner Michael Acevedo, an inmate at the Federal Correctional Institute-Yazoo City, Mississippi, filed this petition [1] for habeas corpus relief pursuant to 28 U.S.C. § 2241 on September 20, 2013. Petitioner was granted in forma pauperis status by an order [4] entered on October 3, 2013. Upon review of the petition [1] and memorandum [2] in support, the Court finds that the habeas should be dismissed.

I. Background

Petitioner pleaded guilty in the United States District Court for the Eastern District of Tennessee of aiding and abetting attempted armed robbery which was Count (2) of the indictment, and using and carrying a firearm during a crime of violence which was Count (3) of the indictment. Pet. [1] p. 1. Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255, which was denied and dismissed with prejudice. Pet'r's Mem. [2] p. 2. He then unsuccessfully appealed the denial of his motion to vacate pursuant to 28 U.S.C. § 2255. Id.

Before the Court is Petitioner's request for habeas relief pursuant to 28 U.S.C. § 2241. Petitioner's grounds for habeas relief are the following:

Ground One: Actual innocence on Counts 2 & 3: Supreme Court decisions establish petitioner was convicted for non-existent offense. Petitioner was convicted for non-criminal conduct as the record clearly shows.
Ground Two: Ineffective assistance of counsel: Petitioner was subjected to unconstitutional practices. Guilty plea was unintelligent and involuntary.

Pet. [1] p. 6. But as discussed below, Section 2241 is not the proper statute for bringing such claims.

II. Analysis

As noted by the United States Court of Appeals for the Fifth Circuit Court, "[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for a motion under [section] 2255." McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam) (cited in Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000)). Section 2241 is available to "attack[] the manner in which a sentence is carried out or the prison authorities' determination of its duration." Pack, 218 F.3d at 451. Such petitions are heard by the court with jurisdiction over the facility where the prisoner is incarcerated, id., which provides jurisdiction for the Court to hear Petitioner's case. Section 2255, in contrast, is the proper means of attacking "errors cognizable on collateral review that occurred at or prior to sentencing.'" Id. (citations omitted). Such motions "must be filed in the sentencing court." Id. (citations omitted).

In this case, the relief Petitioner seeks relates to matters that occurred at or prior to the sentencing. These claims, therefore, are not properly asserted under Section 2241, and "[a] section 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion." Id. at 452. There is, however, an exception to this general rule. A prisoner can resort to Section 2241 if he satisfies his burden of establishing the so-called savings clause of Section 2255, which "provides a means to petition the courts for issuance of the Great Writ' when § 2255 is inadequate or unavailable." See Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 345-46 (5th Cir. 2002).

"To fall under this provision, petitioner must claim actual innocence and retroactivity." Frees v. Maye, No. 11-50296, 2011 WL 4349322, at *2 (5th Cir. Sept. 19, 2011) (citing Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001)). As such,

the savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should ...

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