United States District Court, S.D. Mississippi, Northern Division
JEFFERY P. OLINDE PETITIONER
B.E. BLACKMAN RESPONDENT
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
an action pursuant to 28 U.S.C. § 2241 brought by a
federal prisoner incarcerated at the Yazoo City Federal
Correctional Complex. Petitioner asserts that his sentence
was improperly enhanced under the career offender provisions
of the sentencing guidelines. The undersigned recommends that
the petition be dismissed.
P. Olinde was convicted in 2004 in the United States District
Court for the Middle District of Louisiana of manufacturing
methamphetamine (Count 2), possession of a firearm and
ammunition by a convicted felon (Count 3), and possession of
a firearm in furtherance of a drug trafficking crime (Count
4). Thereafter he was sentenced as an armed career criminal
under the Armed Career Criminal Act (ACCA), to terms of 262
months on Count 3 and 240 months on Count 2 to be served
concurrently, followed by a consecutive term of 60 months on
Count 4. His conviction and sentence were affirmed on appeal.
2007, Olinde filed a motion under 28 U.S.C. § 2255
alleging ineffective assistance of counsel. The motion was
denied, and the Fifth Circuit denied a certificate of
appealability. He subsequently sought authorization from the
Fifth Circuit for the filing of a successive § 2255
motion based upon Johnson v. United States, 135
S.Ct. 2551 (2015). By order entered June 21, 2016, the Fifth
Circuit denied Olinde's request. In the order, the court
acknowledged that Olinde was relying upon a new rule of
constitutional law (such reliance being a basis under 28
U.S.C. § 2255(h)(2) for the filing of a successive
petition), but found that Johnson did not apply to
Olinde's sentence. [7-5].
§ 2241 petition, Olinde argues that under
Johnson and related cases,  one of the prior convictions
used to support his career offender enhancement under the
sentencing guidelines no longer qualifies as a crime of
violence and that his sentence is therefore invalid and
should be vacated.
the proper vehicle for challenging a conviction or sentence
is a motion under 28 U.S.C. § 2255 in the court of
conviction, not a § 2241 action in the district of
incarceration. Ojo v. I.N.S., 106 F.3d 680, 683 (5th
Cir. 1997) (errors occurring before or during sentencing
should be attacked pursuant to § 2255, not § 2241).
Olinde contends that he may nevertheless proceed under §
2241 because his claims fall under the “savings
clause” exception of § 2255, which allows a
prisoner to resort to § 2241 if he establishes that a
remedy under § 2255 is inadequate or unavailable.
See 28 U.S.C. § 2255(e). A remedy is inadequate
if a petitioner's claim (1) is based upon a retroactively
applicable Supreme Court decision establishing that he may
have been convicted of a nonexistent offense and (2) was
foreclosed by circuit law at the time when the claim should
have been raised in his trial, direct appeal, or first §
2255 motion. Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001). Olinde's position is that
he may claim the benefits of the savings clause because his
attack on his sentence enhancement is based upon a
newly-recognized, retroactively-applicable rule of law.
well-established in the Fifth Circuit that claims relating to
sentence enhancement determinations do not fall within the
savings clause and are not cognizable under § 2241.
See, e.g., In re Bradford, 660 F.3d 226,
230 (5th Cir. 2010) (claim that petitioner was
actually innocent of career offender enhancement did not
satisfy savings clause); Padilla v. United States,
416 F.3d 424, 426-27 (5th Cir. 2005) (claim that
sentence was improperly enhanced did not meet requirements of
savings clause); Kinder v. Purdy, 222 F.3d 209,
213-14 (5th Cir. 2000) (claim that petitioner was
not a career offender under sentencing guidelines did not
fall within savings clause). Because Olinde cannot challenge
his sentence enhancement pursuant to § 2241, the
petition should be dismissed.
the undersigned recommends that the petition be dismissed
with prejudice. The parties are hereby notified that failure
to file written objections to the proposed findings,
conclusions, and recommendation contained within this report
and recommendation within fourteen (14) days after being
served with a copy shall bar that party, except upon grounds
of plain error, from attacking on appeal the proposed factual
findings and legal conclusions accepted by the district
court. 28 U.S.C. § 636; Fed.R.Civ.P. 72(b); Douglass
v. United Services Automobile Ass'n, 79 F.3d 1415,
1428-29 (5th Cir. 1996).
submitted, this the 9th day of March 2018.
In Johnson, the Supreme Court
struck down as unconstitutional the “residual
clause” of the ACCA, i.e., the clause that
includes in the Act's definition of a “violent
felony” a crime that “involves conduct that
presents a serious potential risk of physical injury to
another.” See 18 U.S.C. §
In addition to relying on
Johnson, Olinde cites to Welch v. United
States, 136 S.Ct. 1257 (2016) (holding that
Johnson applies retroactively on collateral review);
Descamps v. United States, 133 S.Ct. 2276 (2013)
(holding that a court may not look beyond the text of a
statute with indivisible elements to determine whether the
crime qualifies as a crime of violence under the ACCA), and
Mathis v. United States, 136 S.Ct. 2243 (2016)
(holding that in order to qualify as crime of violence ...