United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
Keith Ball United States Magistrate Judge
Crowder is a federal prisoner serving a 240-month sentence at
the Federal Correctional Complex in Yazoo City, Mississippi.
He brought this action pursuant to 28 U.S.C. § 2241
challenging his conviction. The undersigned recommends that
the petition be dismissed.
was tried at a bench trial and convicted in the United States
District Court for the Northern District of Illinois of
conspiracy to possess with intent to distribute a controlled
substance, and with knowingly and intentionally attempting to
possess a controlled substance, both in violation of 21
U.S.C. § 846. In his petition, he argues that the
evidence of his knowledge that he was dealing with a
controlled substance was insufficient to convict him. He also
contends that evidence used to convict him was the product of
an impermissible seizure of his vehicle.
the proper vehicle for challenging a federal 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. Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000) (per curiam). A federal prisoner
may challenge his conviction under § 2241 only if his
claim falls 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 only where 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).
attempt to come within the savings clause exception, Crowder
relies upon McFadden v. United States, 135 S.Ct.
2298 (2015). McFadden involved a prosecution under
the Controlled Substances Act, 21 U.S.C. § 841(a)(1),
(CSA), and the Analogue Act, 21 U.S.C. § 802(32)(A), for
distribution of bath salts. In McFadden, the Court
first stated that in order to convict under the CSA, the
government must establish that the defendant knew that the
substance he was dealing with was a controlled substance.
McFadden, 136 S.Ct. at 2303. The Court went on to
clarify that where the substance is an analogue, this
knowledge requirement is met by establishing either that the
defendant knew that the substance was controlled under the
CSA or the Analogue Act, regardless of whether he knew its
identity, or that he knew the identity of the specific
analogue he was dealing with, whether or not he knew its
legal status as an analogue. Id. at 2305.
has not established that McFadden set forth a new,
retroactively applicable rule indicating that he may have
been convicted of a non-existent offense. Crowder and an
accomplice were arrested after they took delivery of a Ford
Mustang in which cocaine and marijuana were hidden. See
United States v. Crowder, 588 F.3d 929 (7th
Cir. 2010). Crowder's case did not involve the Analogue
Act. Furthermore, the knowledge issue in Crowder's case
was apparently whether he knew of the presence of the
substances in the car, not whether he appreciated their
nature as controlled substances. McFadden provides
no basis for application of the savings clause.
Crowder's petition may not be brought under § 2241,
this court is without jurisdiction. Accordingly, the
undersigned recommends that the petition be dismissed.
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).
 The Analogue Act identifies a category
of substances (analogues) that are substantially similar to
those listed in the controlled substances schedule, and it
instructs courts to treat those analogues, if they are
intended for human consumption, as controlled substances.
McFadden, 135 S.Ct. at 2303.
 Crowder makes no attempt to fit his
Fourth Amendment argument within the savings clause