United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
T. WINGATE UNITED STATES DISTRICT JUDGE
matter is before the Court, sua sponte, for
consideration of dismissal. Petitioner LaShawn Rushing, an
inmate at the FCC Yazoo City Low, Yazoo City, Mississippi,
files this Petition for habeas corpus relief pursuant to 28
U.S.C. § 2241. Having liberally construed the Petition
 and Petitioner's Memorandum Brief in Support  and
in consideration of the applicable law, the Court finds that
this case should be dismissed.
current incarceration is based on a conviction rendered by
the United States District Court for the Southern District of
Georgia. Pet.  at 1. Petitioner was sentenced to serve 235
months of imprisonment followed by five years of supervised
release. Pet'r's Memo.  at 2. Petitioner states
that he has a Motion filed pursuant to 28 U.S.C. § 2255
currently pending before the United States District Court for
the Southern District of Georgia in United
States v. Rushing, No. 3:13-cr-7. Pet.  at 4.
states that he “is actually innocent of being a career
offender and was convicted and sentenced to a nonexistent
offense in light of Hinkle.” Pet'r's
Memo.  at 3-4. Petitioner argues that his
prior convictions for possession of marijuana with intent to
distribute and ‘sale of cocaine, ' in violation of
Georgia Law O.C.G.A § 16-13-30 does NOT constitute a
‘controlled substance offense' in light of
Hinkle and could not serve as a predicate for career
offender sentencing under USSG § 4b1.1 as the Georgia
State statute is ‘NOT' divisible.”
Id. at 3. According to Petitioner he has asserted in
his pending Motion pursuant to 28 U.S.C. § 2255 in the
sentencing court as a ground for relief that his counsel was
ineffective for failing to contest the career offender
application under Johnson v. United
States. Id. at 3. Petitioner requests
that this Court remand “him for resentencing without
the Career Offender Division as he is actually innocent and
is entitled to immediate release from custody.”
Id. at 11.
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). On the
other hand, Section 2255 “provides the primary means of
collateral attack on a federal sentence.” Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). The proper
vehicle for attacking errors that “occurred at or prior
to sentencing” is a motion pursuant to Section 2255.
Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,
1113 (5th Cir.1990). As noted by the United States Court of
Appeals for the Fifth Circuit, “[a] petition for a writ
of habeas corpus pursuant to [section] 2241 is not a
substitute for a motion under [section] 2255.”
Pack, 218 F.3d at 452 (brackets in original)
(quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th
claims do not challenge the execution of his sentence but
instead attack the validity of his sentence. As such, his
claims are not properly asserted under § 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.” Pack, 218
F.3d at 452 (citing Ojo v. Immigration and Naturalization
Service, 106 F.3d 680, 683 (5th Cir.1997)). 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.” Wesson v. U.S.
Penitentiary Beaumont, TX, 305 F.3d 343, 346 (5th Cir.
2002). The inmate bears the burden of demonstrating that the
§ 2255 remedy is inadequate or ineffective to test the
legality of his detention. Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001).
Petitioner has a pending Motion filed pursuant to 28 U.S.C.
§ 2255 before the sentencing Court in United States
v. Rushing, No. 3:13-cr-7-DHB-BKE (S.D. Ga. July 29,
2014), the Court finds that Petitioner has not established
the inadequacy or ineffectiveness of such a motion.
Petitioner therefore does not meet the savings clause of
§ 2255 and the Court does not have jurisdiction to
address the issues presented by Petitioner. Under the
circumstances of the instant civil action, this Petition will
on the foregoing, since this Petition challenges the validity
of Petitioner's sentence and his claims do not meet the
stringent requirements of the savings clause, he will not be
allowed to proceed with this action for habeas corpus relief
pursuant to § 2241. Accordingly, this Petition for
habeas relief shall be dismissed as frivolous. See
Ojo, 106 F.3d at 683 (finding inmate's § 2241
petition asserting claims properly pursued under § 2255
to be “thoroughly frivolous”). Further, to the
extent the Petition can be construed as a § 2255 motion,
it is dismissed for lack of jurisdiction. Pack, 218
F.3d at 454.
Judgment in accordance with this Memorandum Opinion and Order
shall be issued.