United States District Court, S.D. Mississippi, Northern Division
Carlton W. Reeves United States District Judge
matter is before the Court, sua sponte, for consideration of
dismissal. Petitioner Calvin Louis Smith is a federal inmate
presently incarcerated at the Federal Correctional Complex in
Yazoo City, Mississippi. He brings this pro se Petition for
habeas corpus relief pursuant to 28 U.S.C. § 2241. After
reviewing the Petition  and Declaration in Support , in
conjunction with the relevant legal authority, the Court
concludes that Smith's Petition should be dismissed.
2014, a jury found Smith guilty of bribery involving federal
programs in violation of 18 U.S.C. § 666 (a)(1)(B).
See United States v. Smith, Crim. Action No.
3:13-cr-34-HTW-LRA (S.D.Miss. Sep. 30, 2014). The Court
sentenced Smith to serve a 66-month term of imprisonment
followed by a two-year term of supervised release.
Id. Smith's motion for post-conviction relief
under 28 U.S.C. § 2255 is pending in his criminal case.
is challenging the validity of his conviction based on
ineffective assistance of counsel. Smith states that he is
bringing the same nine grounds for relief in this § 2241
petition that he is asserting in his pending § 2255
motion. Pet.  at 4. Smith argues that § 2255 is an
inadequate or ineffective means to bring his claims because
the Court has not directed the United States Attorney to
respond to his § 2255 motion or issued a ruling on the
motion. Id. at 7. As relief, Smith is asking the
Court to invalidate his conviction and order his immediate
release from incarceration. Id. at 26.
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. Id. (quoting Cox v. Warden,
911 F.2d 1111, 1113 (5th Cir. 1990)) (“[T]he primary
means of collateral attack on a federal sentence” is a
§ 2255 motion.). If a prisoner is challenging errors
that “occurred during or before sentencing” his
claims should be pursued in a § 2255 motion. Ojo v.
INS, 106 F.3d 680, 683 (5th Cir.1997) (citations
pursuant to a limited exception, referred to as the
“savings clause, ” a federal court may consider a
§ 2241 petition that challenges a federally imposed
sentence when the petitioner establishes that the remedy
under § 2255 is inadequate or ineffective.
Reyes-Requena v. United States, 243 F.3d 893, 901
(5th Cir. 2001). In Reyes-Requena, the Fifth Circuit
set forth a two-part test to determine if a claim meets the
stringent “inadequate or ineffective” requirement
entitling the inmate to proceed under the savings clause. 243
F.3d at 904. To satisfy the test, an inmate “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.” Wesson v. U.S. Penitentiary, 305
F.3d 343, 347 (5th Cir. 2002) (citing Reyes-Requena v.
United States, 243 F.3d at 904).
Smith is challenging the validity of his conviction and
sentence, he may not pursue these claims in a § 2241
petition unless he can meet the requirements of the savings
clause. Smith argues that he should be allowed to proceed
under the savings clause because the sentencing court has not
directed the United States Attorney to respond to his §
2255 motion or issued a ruling on the motion. The Court notes
that on May 4, 2017, an Order  was entered in Smith's
criminal case directing the United States Attorney to respond
to Smith's § 2255 motion. Smith is currently
proceeding with his claims under § 2255. A habeas
petition under § 2241 is not a substitute for a motion
under § 2255. Pack, 218 F.3d at 452 (citations
is not relying on a retroactively applicable Supreme Court
decision establishing that he may have been convicted of a
nonexistent offense to argue that he meets the requirements
of the savings clause. At best, Smith argues that his attempt
at § 2255 relief is, at this time, unsuccessful. A prior
unsuccessful § 2255 motion or an inability to file a
second or successive § 2255 motion does not entitle an
inmate to proceed under the savings clause. Tolliver v.
Dobre, 211 F.3d 876, 878 (5th Cir. 2000); see also
Bell v. Holder, 488 F. App'x 822, 823 (5th Cir.
2012) (finding inability to file § 2255 motion based on
statute of limitations does not render § 2255 remedy
inadequate or ineffective).
bears the burden of showing the inadequacy or ineffectiveness
of the § 2255 remedy in order to proceed with his claims
in a § 2241 petition. Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001). He fails to meet this burden.
Therefore, Smith is not entitled to habeas relief under
Court has considered the pleadings and applicable law. For
the reasons stated, Smith's Petition for habeas corpus
relief pursuant to § 2241 is dismissed as frivolous.
See Ojo vs. INS,106 F.3d 680, 683 (5th Cir.1997)
(finding inmate's § 2241 petition asserting claims
properly pursued under § 2255 to be “thoroughly
frivolous”). Furthermore, to the extent Smith's
Petition can be construed as a § ...