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Kilgore v. Fisher

United States District Court, Fifth Circuit

January 7, 2014

CLEVELAND WINSTON KILGORE, JR., Petitioner,
v.
WARDEN S. FISHER, Respondent.

MEMORANDUM OPINION AND ORDER

DAVID BRAMLETTE, District Judge.

This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner Kilgore, a federal inmate incarcerated at Federal Correctional Complex - Yazoo City, Mississippi, filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 on December 4, 2013. Upon review of the petition [1] and supplemental petition [3], the Court finds that the instant petition should be dismissed for the following reason.

Background

Petitioner was convicted in the United States District Court of Maryland of four counts of bank fraud, four counts of aggravated identity theft and aiding and abetting those offenses and was sentenced to a 149-month term of imprisonment. United States v. Kilgore, No. 07-4025, 2007 WL 44022840 at *1 (4th Cir. Nov. 15, 2007). The United States Court of Appeals of the Fourth Circuit affirmed his conviction. Id. Petitioner states that he is "challenging the custody simpliciter' [sic] of current violations of the Constitution, laws, and a self-executing treaty violation of this custody by the Respondent." Pet. [1] at 2.

As grounds for habeas relief, Petitioner presents the following:

GROUND ONE: I, Cleveland Winston Kilgore, Jr., am currently detained in violation of the laws of the United States which protect an internationally protected person, the current detention is in violation of U.S. laws 28 U.S.C. § 2241, 28 U.S.C. § 2243.
GROUND TWO: I am currently illegally detained and held in violation of my rights under the U.S. Constitution through a sentence I have not yet begun to serve that deprive me of my rights under the U.S. Constitution Fifth, and Fourteenth Amendment.

Pet. [1] at 6-7. Petitioner requests as relief that his 149-month sentence be vacated or voided and that he be released immediately. Id. at 8.

Analysis[1]

A petitioner may attack the manner in which his sentence is being executed in the district court with jurisdiction over his custodian pursuant to 28 U.S.C. § 2241. United States v. Cleto, 956 F.2d 83, 84 (5th Cir.1992). The proper means of attacking errors cognizable on collateral review that occurred "at or prior to sentencing" is by filing a petition pursuant to 28 U.S.C. § 2255 in the sentencing court. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000)(citations omitted).

In the instant case, the Petitioner's allegations relate to the validity of his conviction and sentence based on claims that relate to alleged errors that occurred before or during sentencing and not to the manner in which his sentence is being executed. These claims clearly are not properly asserted under § 2241. "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. Pack, 218 F.3d at 452. There is, however, an exception to this general rule. A prisoner can resort to § 2241 if he satisfies his burden of establishing the so-called savings clause of § 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).

Case law has made it clear that "[t]he petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective." Pack, 218 F.3d at 452. The Fifth Circuit has held the savings clause of § 2255 to apply to a claim:

(1) when the claim is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (2) that claim was foreclosed by circuit law at the time when the claim 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). The first prong of the test is, essentially, an "actual innocence" requirement, whose "core idea is that the petitioner may be have been imprisoned for ...


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