United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
GILSTRAP UNITED STATES DISTRICT JUDGE.
Warner, an inmate confined within the Bureau of Prisons,
proceeding pro se, filed the above-styled petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Court referred this matter to the Honorable Caroline M.
Craven, United States Magistrate Judge, at Texarkana, Texas,
for consideration pursuant to applicable orders of this
court. The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge concerning
this case. The Magistrate Judge recommends that the petition
for writ of habeas corpus be dismissed.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the records, pleadings and all available evidence. Petitioner
filed objections to the Report and Recommendation. The Court
must therefore conduct a de novo review of the
objections in relation to the pleadings and the applicable
being convicted of possessing crack cocaine with the intent
to distribute, petitioner was found to be a career offender
for the purposes of § 4B1.1 of the United States
Sentencing Guidelines. He asserts that based on recent
decisions from the Supreme Court and the United States Court
of Appeals for the Fifth Circuit, he should no longer be
considered a career offender. However, the Magistrate Judge
concluded that as petitioner is contesting the sentence he
received for his conviction, rather than his conviction
itself, his ground for review is not cognizable in a petition
filed pursuant to 28 U.S.C. § 2241.
prisoner may only utilize § 2241 to challenge a federal
criminal conviction if the remedy provided for in 28 U.S.C.
§ 2255 is ineffective or inadequate to test the legality
of his detention. The remedy provided for in § 2255 has
been found to be ineffective to challenge the legality of a
prisoner's detention only where the prisoner is asserting
a ground for review that: (1) is based on a Supreme Court
decision that applies retroactively on collateral review and
establishes he may have been convicted of a nonexistent
offense and (2) was foreclosed by applicable circuit law at
the time it could have been asserted at trial, on direct
appeal or in a first motion to vacate filed pursuant to
§ 2255. Reyes-Requena v. United States, 243
F.3d 893, 894 (5th Cir. 2001).
first objection, petitioner objects to the
“characterization that his § 2241 petition was not
challenging the ‘imposition of his sentence' or the
‘legality of his detention.'” However, in her
Report and Recommendation, the Magistrate Judge correctly
stated that petitioner was challenging the legality of the
sentence imposed as a result of his conviction.
petitioner states that the loss of his liberty as a result of
his sentencing proceeding and what he characterizes as a
misapplied career offender enhancement has placed him in a
specific subset of offenders whose sentence is fundamentally
unfair. However, the test for determining if petitioner is
entitled to relief in this proceeding is not whether his
sentence is fundamentally unfair, but whether he has
satisfied the test set forth in Reyes-Requena.
third objection, petitioner states § 2255 is inadequate
to challenge the legality of his detention because the
restrictions on filing a successive motion to vacate under
§ 2255 prevents him from being able to rely on the
Supreme Court's recent decision in Mathis v. United
States, 136 S.Ct. 2243 (2016). In Mathis, the
Supreme Court held that when determining whether a prior
conviction qualifies as a predicate offense under the Armed
Career Criminal Act, a sentencing court may subdivide the
statute which formed the basis for the prior conviction only
if the statute contains multiple elements constituting
separate crimes rather than simply multiple means of
committing the same offense. United States v.
Wright, __F. App'x__, 2017 WL 1032310 (5th Cir. Mar.
15 2017). However, a prisoner's inability to meet the
requirements for filing a successive motion to vacate under
§ 2255 does not make the remedy provided by § 2255
inadequate to challenge the legality of his detention.
Tolliver v. Dobre, 211 F.3d 875, 878 (5th Cir.
petitioner contends that his ground for review was foreclosed
by applicable circuit law at the time of his trial, direct
appeal and initial motion to vacate filed pursuant to §
2255. As petitioner relies on decisions that were issued in
2016 and 2017, his contention is correct. Despite this,
however, his ground for review is not cognizable in this
proceeding because he is challenging the sentence he received
as a result of his conviction ...