United States District Court, S.D. Mississippi, Western Division
MEMORANDUM OPINION AND ORDER OF DISMISSAL
BRAMLETTE, UNITED STATES DISTRICT JUDGE
matter is before the Court sua sponte. Pro
se Petitioner Sergio Ramirez, also known as Edgar
Carlon, filed this Petition [1, 10] for Writ of Habeas Corpus
under 28 U.S.C. § 2241. At the time, he was incarcerated
at the Adams County Correctional Center in Natchez,
Mississippi. He attacks his drug convictions and sentences.
The Court has considered and liberally construed the
pleadings. As set forth below, this case is dismissed.
5, 2019, Petitioner filed the instant habeas petition
challenging his convictions and sentences handed down from
the United States District Court for the Central District of
California. He pled guilty to conspiracy to distribute at
least fifty grams of methamphetamine, two counts of
possession with intent to distribute at least fifty grams of
methamphetamine, and maintaining a drug involved premises.
United States v. Ramirez, 2:09cr229 (C.D. Cal. Apr.
6, 2010). On July 12, 2010, Petitioner was sentenced to
concurrent terms of 148 months imprisonment on each count.
United States v. Ramirez, 2:09cr229 (C.D. Cal. Jul.
12, 2010). The Ninth Circuit Court of Appeals affirmed.
United States v. Ramirez, 472 Fed.Appx. 661, 662
(9th Cir. Apr. 18, 2012).
then filed a motion to vacate his sentences under 28 U.S.C.
§ 2255. United States v. Ramirez,
2:09cr229 (C.D. Cal. Feb. 19, 2014). On February 19, 2014,
the trial court denied the motion. Id.
next filed a motion to reduce his sentences pursuant to 18
U.S.C. § 3582, arguing that a retroactive amendment to
the United States Sentencing Guidelines reduced his
sentences. United States v. Ramirez, 2:09cr229 (C.D.
Cal. Jan. 30, 2017). The Central District of California
denied the motion because “based on the quantity of
drugs . . . and relevant conduct” involved, the
amendment did not affect the Sentencing Guidelines in
Petitioner's case. Id. The Ninth Circuit
affirmed on March 19, 2018. United States v.
Ramirez, 715 Fed.Appx. 663, 664 (9th Cir. Mar. 19,
instant case, Petitioner proceeds under § 2241. He
argues his (1) guilty plea was unknowing, (2) trial counsel
was ineffective for advising him to plead guilty, failing to
discuss the pre-sentencing report, and not objecting to his
sentences, and (3) sentences were illegal because they were
below the Sentencing Guidelines range. Petitioner asks the
Court to vacate his convictions.
petitioner may attack the manner in which his sentence is
being executed in the district court with jurisdiction over
his custodian, pursuant to § 2241. United States v.
Cleto, 956 F.2d 83, 84 (5th Cir. 1992). By contrast, a
motion filed pursuant to § 2255 “provides the
primary means of collateral attack on a federal
sentence.” Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000). The proper vehicle for challenging errors
that “occurred at or prior to sentencing” is a
motion pursuant to § 2255. Cox v. Warden, 911
F.2d 1111, 1113 (5th Cir. 1990).
claims that he was improperly convicted and sentenced do not
challenge the execution of his federal sentences but instead
attacks the validity of his sentences. Since the alleged
constitutional violations occurred before sentencing, they
are not properly pursued in a § 2241 petition.
“[u]nder the savings clause of § 2255, if the
petitioner can show that § 2255 provides him an
inadequate or ineffective remedy, he may proceed by way of
§ 2241.” Wesson v. U.S.
Penitentiary, 305 F.3d 343, 347 (5th Cir. 2002). To meet
the stringent “inadequate or ineffective”
requirement, the Fifth Circuit holds:
the savings clause of § 2255 applies to a claim (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 §
Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). Petitioner bears the burden of demonstrating
that the § 2255 remedy is inadequate or ineffective to
test the legality of his detention. Id. at 901.
does not address the savings clause. He does not argue he was
convicted of a nonexistent offense or that his claims were
previously foreclosed. Since Petitioner's claims do not
meet the stringent requirements of the savings clause, he
will not be allowed to proceed with the claims under §
2241. Accordingly, the Petition shall be dismissed as
frivolous. To the extent the Petition ...