United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
habeas petition brought under 28 U.S.C. § 2241 is before
the Court on the Report and Recommendation
(“R&R”) of United States Magistrate Judge F.
Keith Ball. Judge Ball recommended dismissal with prejudice
for lack of jurisdiction. R&R . Petitioner Maurice
Crowder timely filed an Objection  to the R&R.
Because the Court agrees with Judge Ball that Crowder failed
to establish that his petition falls within 28 U.S.C. §
2255's savings clause, it adopts the R&R as the
opinion of the Court.
is a federal prisoner currently housed at the Federal
Correctional Complex in Yazoo City, Mississippi. In 2008, he
was convicted of conspiracy to possess with intent to
distribute a controlled substance under 21 U.S.C. § 846,
and with knowingly and intentionally attempting to possess a
controlled substance under 21 U.S.C. § 841(a)(1). The
convictions occurred in the United States District Court for
the Northern District of Illinois. Crowder filed the instant
habeas petition under § 2241, arguing that there was
insufficient evidence that he knew he was in possession of a
controlled substance and that the Supreme Court's
decision in McFadden v. United States, 135 S.Ct.
2298 (2015), requires the government to prove he knew the
substance was controlled. Pet. Mem.  at 10. He also says
the seizure leading to his conviction violated the Fourth
Amendment. Judge Ball recommended that Crowder's petition
be dismissed for lack of jurisdiction as improperly brought
under § 2241. II. Analysis
§ 2241 petition attacks his conviction and sentence
entered in the Northern District of Illinois. But §
“2255, not § 2241, is the proper means of
attacking errors that occurred during or before sentencing,
” and generally “only the sentencing court has
jurisdiction to hear claims under § 2255.”
Gadson v. Fleming, No. 01-10265, 2002 WL 31730411,
at *1 (5th Cir. Nov. 29, 2002) (quoting Ojo v.
I.N.S., 106 F.3d 680, 683 (5th Cir. 1997)).
is, however, an exception to this rule. “[A] §
2241 petition that attacks custody resulting from a federally
imposed sentence may be entertained under the savings clause
of § 2255 if the petitioner establishes that the remedy
provided under § 2255 is inadequate or ineffective to
test the legality of his detention.” Padilla v.
United States, 416 F.3d 424, 426 (5th Cir. 2005).
[T]he savings clause of § 2255 applies to a claim of
actual innocence “(i) that is based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense
and (ii) that was foreclosed by circuit law at the time when
the claim should have been raised in the petitioner's
trial, appeal or first § 2255 motion.”
Id. (quoting Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001)).
attempts to satisfy the savings clause by citing
McFadden. McFadden involved “the
knowledge necessary for conviction under §
841(a)(1) when the controlled substance at issue is
in fact an analogue” as defined under 21 U.S.C. §
813. 135 S.Ct. at 2302. The McFadden Court held that
the “knowledge requirement is met if the defendant knew
that the substance was controlled under the CSA or the
Analogue Act, even if he did not know its identity . . . [or]
if the defendant knew the specific features of the substance
that make it a “controlled substance analogue.”
Id. (quoting 21 U.S.C. § 802(32)(A)).
the McFadden defendant, Crowder was not convicted
for possessing a controlled substance analogue; he
was convicted for conspiring to possess with the intent to
distribute cocaine and marijuana. So, Judge Ball concluded
that “McFadden [does not] set forth a new,
retroactively applicable rule indicating that [Crowder] may
have been convicted of a non-existent offense.” R&R
 at 2.
says Judge Ball got it wrong, but the only circuit court to
consider Crowder's argument rejected it. The Third
Circuit, writing per curiam, held that
McFadden “did not change the substantive law
for an offense involving a non-analogue controlled substance,
such as [an] offense involving cocaine.” Walker v.
United States, 731 Fed.Appx. 88, 90 (3d Cir. 2018). So
too, Crowder's convictions involved non-analogue
has failed to identify a retroactively applicable Supreme
Court decision establishing that he was convicted of a
nonexistent offense. It may be true-as he argues-that
knowledge and intent were key issues at his trial, but there
is nothing knew about the government's burden to prove
knowledge and intent. In fact, the McFadden Court
explicitly agreed with the Seventh Circuit's mens
rea requirement for possession of non-analogue
controlled substances like cocaine and marijuana. 135 S.Ct.
at 2304 (citing United States v. Martinez, 301 F.3d
860, 865 (7th Cir. 2002)). Crowder was convicted in the
Judge Ball notes that “Crowder makes no attempt to fit
his Fourth Amendment argument within the savings clause
exception.” R&R  at 3 n.2. This is true, ...