United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
CARLTON W. REEVES, District Judge.
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner Mauriel Glover is a federal inmate presently incarcerated at the Federal Correctional Complex in Yazoo City, Mississippi. He filed this pro se Petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. After reviewing the Petition  and Memorandum in Support , in conjunction with the relevant legal authority, the Court concludes that Glover's Petition should be dismissed.
Petitioner pleaded guilty in the United States District Court for the District of Connecticut to conspiracy to distribute more than 50 grams of crack-cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1),  and he was sentenced on June 23, 2010, to 252 months imprisonment. United States v. Glover, No. 3:08-cr-4-JCH-1 (D. Conn. June 23, 2010). Petitioner's conviction was affirmed by the United States Court of Appeals for the Second Circuit. See United States v. Glover, 448 F.Appx. 158 (2d Cir. Jan. 18, 2012), cert. denied, 132 S.Ct. 2701 (May 29, 2012).
Petitioner subsequently filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255, which was denied by the sentencing court. Pet.  at 3. Petitioner appealed the decision of the sentencing court, and the Second Circuit denied Petitioner's motion to proceed in forma pauperis and his motion for Certificate of Appealability. United States v. Glover, No. 14-900 (2d Cir. Nov. 6, 2015).
Petitioner asserts as grounds for the instant Petition that the United States failed to comply with 21 U.S.C. § 851(a). Pet.  at 4, Mem.  at 3. Section 851(a)(1) requires that if the United States intends to use a prior conviction to increase punishment, it must file an information and serve the defendant with a copy before entry of a guilty plea or trial. Section 851(a)(2) prohibits the filing of such an information if the proposed increased punishment exceeds three years imprisonment unless the defendant was prosecuted by indictment or waived indictment for the offense being used to increase the sentence.
Petitioner also claims that his prior drug conviction, used to increase his sentence pursuant to 21 U.S.C. § 841(b)(1)(A), was a simple possession misdemeanor and therefore could not lawfully be used to enhance his sentence. Pet.  at 5. Finally, Petitioner requests that this Petition be transferred to the "circuit of confinement." Id.
As relief, Petitioner is requesting "removal of the 851(a) to provide the lower penalty." Pet.  at 6.
A federal inmate may attack the manner in which his sentence is being carried out or the prison authorities' determination of its duration in a habeas petition pursuant to 28 U.S.C. § 2241, filed in the same district where the prisoner is incarcerated. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). By contrast, a federal inmate's challenge to the validity of his conviction or sentence should be pursued in a motion pursuant to 28 U.S.C. § 2255, filed in the sentencing court. Id. (quoting Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (stating that "the primary means of collateral attack on a federal sentence" is a Section 2255 motion)). If a prisoner is challenging errors that "occurred during or before sentencing, " his claims should be pursued in a Section 2255 motion. Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). Furthermore, a habeas petition under Section 2241 is not a substitute for a motion under Section 2255. Pack, 218 F.3d at 452.
In the event, however, a "petitioner can show that § 2255 provides him an inadequate or ineffective remedy, he may proceed by way of § 2241." Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002) (per curiam) (citing Pack, 218 F.3d at 452). This is referred to as the "savings clause" of Section 2255. Id. To meet the stringent inadequate or ineffective test to proceed under the savings clause, Petitioner "must show that (1) his claims are based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense, and (2) his claims were foreclosed by circuit law at the time when the claims should have been raised in his trial, appeal, or first § 2255 motion." Id. (citing Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001)). Petitioner bears the burden of demonstrating that the Section 2255 remedy is inadequate or ineffective to test the legality of his detention. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (per curiam) ("[T]he burden of coming forward with evidence to show the inadequacy or ineffectiveness of a motion under § 2255 rests squarely on the petitioner.").
A. Ground One
With respect to his Section 851(a)(1) insufficient notice argument, Petitioner relies on Price v. United States, 537 U.S. 1152 (2003), United States v. Williams, 59 F.3d 1180 (11th Cir. 1995), United States v. Collado, 106 F.3d 1097 (2d Cir. 1997), overruled by United States v. Ortiz, 143 F.3d 728 (2d Cir. 1998), Sapia v. United States, 433 F.3d 212 (2d Cir. 2005), United States v. Arnold, 467 F.3d 880 (5th Cir. 2006), Vadas v. United States, 527 F.3d 16 (2d Cir. 2007), and United States v. Morales, 560 F.3d 112 (2d Cir. 2007). Mem.  at 2-3.
Petitioner's reliance on Price, Williams, Collado, Sapia, Arnold, Vadas and Morales to support his claim that he meets the savings clause by virtue of the United States having failed to comply with Section 851(a) is misplaced. As noted supra, Petitioner filed a Section 2255 motion to vacate his sentence. See Glover v. United States, Civil Action No. 3:13-CV-802-JCH (D. Conn. March 6, 2014). The sentencing court rejected Petitioner's contention that he did not receive timely notice that the government intended to use his prior conviction to enhance his sentence. Id. at 3-5. That court cited Morales, the latest notice case relied upon by Petitioner, in its decision. Id. at 3. Lack of success under Section 2255 fails to ...