United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
an action pursuant to 28 U.S.C. § 2241 brought by Duffy
Lynn Striker, a federal prisoner incarcerated at the Yazoo
City Federal Correctional Complex in Yazoo City, Mississippi.
Having considered the petition, response, and reply, the
undersigned recommends that the petition be dismissed.
was convicted in 2003 in the United States District Court for
the Northern District of Alabama of possession with intent to
distribute methamphetamine (Counts 1 and 5), possession of a
firearm in furtherance of a drug trafficking crime (Counts 2
and 6), and possession of a firearm by a convicted felon
(Counts 3, 4 and 7). He was sentenced to a 70-month term each
for Counts 1, 3, 4, 5, and 7, all to be served concurrently.
He was also sentenced to 60 months on Count 2 and 300 months
on Count 6, both to becserved consecutively to the sentences
imposed under the other counts. In 2016, the sentencing court
reduced his sentences on Counts 1, 3, 4, 5, and 7 from 70
months to 60 months, pursuant to 18 U.S.C. § 3582(c)(2).
After the sentence reduction, his total sentence was 420
months on all counts.
petition concerns his convictions and sentences on Counts 2
and 6 under 18 U.S.C. § 924(c). Striker challenges these
two convictions and sentences, alleging that, pursuant to the
Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015), they violated due
proper vehicle for challenging a conviction or sentence is
generally not a § 2241 petition, but, rather, a motion
under 28 U.S.C. § 2255, which must be filed in the
sentencing court. Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). Striker 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).
Striker's position is that he may claim the benefits of
the savings clause because he is relying upon a
newly-recognized and retroactively-applicable rule that he
could not have raised in a timely § 2255 motion.
rule of law upon which Striker attempts to rely is that set
forth in Johnson v. United States, 135 S.Ct. 2551
(2015). Johnson involved the Armed Career Criminal
Act (ACCA), which provides for an increased sentence where a
defendant has three prior convictions for a violent felony.
In Johnson, the Supreme Court struck down as
unconstitutionally vague the “residual clause”
portion of the statute's definition of “violent
felony, “ which includes within the definition a felony
that “involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B). Subsequently, in Welch v.
United States, 136 S.Ct. 1257 (2016), the Court held
that Johnson applies retroactively on collateral
however, is inapplicable to Striker's case because
Striker was not sentenced under the ACCA. Neither was his
sentence enhanced because of a prior conviction for a violent
felony. Rather, Striker was convicted and sentenced under
§ 924(c) because he possessed a firearm while committing
drug-trafficking crimes. Johnson provides no basis
for relief for Striker.
memorandum in support of the petition, Strike also contends
that his conviction for aiding and abetting was
unconstitutional under Rosemond v. United States,
134 S.Ct. 1240 (2014). Striker was not convicted of aiding
and abetting, and the holding of Rosemond has no
relevance to his convictions and sentences.
cannot challenge his convictions and sentences pursuant to
§ 2241. Accordingly, 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