United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Wright, Jr., 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.
Docket No. 1. The Court referred this matter to the Honorable
Caroline M. Craven, United States Magistrate Judge, for
consideration pursuant to 28 U.S.C. § 636(b)(1) and (3).
The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge
(“Report”) recommending that the petition for
writ of habeas corpus be dismissed. Docket No. 3 at 3. Mr.
Wright filed objections to the Report. Docket No. 5. The
Court reviews the objected-to portions of the Report de
novo. Fed.R.Civ.P. 72(b)(2).
Wright was previously convicted of conspiring to manufacture
and distribute more than five kilograms of cocaine and more
than 50 grams of cocaine base. The conviction resulted in a
sentence of 292 months of imprisonment. Mr. Wright filed the
instant petition for writ of habeas corpus, contending his
sentence was improper because it was based on facts not found
by the jury to be true beyond a reasonable doubt.
Report, the Magistrate Judge concludes that because
Petitioner is contesting the sentence he received for his
conviction, rather than challenging the conviction itself,
his ground for review could not be asserted in a petition
filed pursuant to 28 U.S.C. § 2241. Docket No. 3 at
3. Mr. Wright objects to this conclusion, arguing that the
petition does challenge the manner in which his sentence is
being executed. Docket No. 5 at 3. The Court disagrees with
Mr. Wright. An example of a challenge to the manner in which
a sentence is being executed would be an assertion that the
Bureau of Prisons has failed to give an inmate credit towards
his sentence for time spent incarcerated prior to sentencing.
Where a petitioner asserts that the sentence imposed by the
trial court is improper, as is the case here, this is a
challenge to the sentence itself. Therefore, Mr. Wright's
objection on this point is overruled.
Mr. Wright takes issue with the Magistrate Judge's
characterization of his arguments. Specifically, in her
Report, the Magistrate Judge notes that Mr. Wright relies on
the Supreme Court's decisions in Alleyne v. United
States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000), as the basis for his
petition. Docket No. 3 at 2. Mr. Wright objects that he is
not solely relying on these Supreme Court decisions, and that
he cites these cases, among others, as references to
establish his claim. Docket No. 5 at 4. The Court
acknowledges that Mr. Wright does cite to additional Supreme
Court decisions, even though he primarily relies on
Alleyne and Apprendi. Even so, none of the
cases cited by Mr. Wright remedy the fatal flaw in his
petition. A prisoner may only utilize 28 U.S.C. § 2241
to challenge a federal criminal conviction where the ground
for review: (1) is based on a Supreme Court decision that
applies retroactively on collateral review and establishes
that 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). Section 2241 may only be used to challenge a
federal conviction, not a federal sentence. Padilla v.
United States, 416 F.3d 424, 426 (5th Cir. 2005);
Wesson v. U.S. Penientiary Beaumont TX, 305 F.3d 343
(5th Cir. 2002). Because Petitioner is attempting to use
§ 2241 to challenge his sentence, rather than his
conviction, his ground for review is not cognizable in this
proceeding. Therefore, the Court also overrules this
made a de novo review of the written objections
filed by Mr. Wright in response to the Report, the Court
concludes that the findings and conclusions of the Magistrate
Judge are correct. Accordingly, Mr. Wright's objections
(Docket No. 5) are OVERRULED. The Court
ADOPTS the findings and conclusions
contained in the Magistrate Judge's Report in their
further ORDERED that this petition for writ
of habeas corpus is DISMISSED.
judgment will be rendered in accordance with the Magistrate
 While 28 U.S.C. § 2241 is
correctly used to attack the manner in which a sentence is
being executed, 28 U.S.C. § 2255 provides the primary
means for collaterally attacking a federal conviction and
sentence. Tolliver ...