United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. Â§ 2241 filed by Petitioner, Robert Minor, a
federal prisoner confined at FMC-Fort Worth, against Eric. D.
Wilson, warden of FMC-Fort Worth, Respondent. After having
considered the pleadings and relief sought by Petitioner, the
Court has concluded that the petition should be dismissed for
lack of jurisdiction.
is serving a 151-month term of imprisonment for his 2015
conviction in the United States District Court for the
Southern District of Mississippi for possession with intent
to distribute 500 grams or more of methamphetamine.
Resp't's App. 5-6, ECF No. 10. It appears that
Petitioner has filed a motion to reduce his sentence in the
convicting court but did not directly appeal his conviction
or sentence or file a motion to vacate, set aside, or correct
the sentence under 28 U.S.C. § 2255. Id. at
instant § 2241 petition, Petitioner challenges his 2015
conviction based on (1) actual innocence; (2) manifest
miscarriage of justice; and (3) fraud upon the court. Pet. 7,
ECF No. l. Although Petitioner pleaded guilty pursuant to a
plea agreement, he asserts that he is actually innocent of
the offense for which he was convicted and allowing his
conviction to stand would amount to a fundamental or manifest
miscarriage of justice. Pet'r's Mem. 2, ECF No. 2;
Pet'r's Traverse 1-4, ECF No. 13. His
actual-innocence claim is based upon alleged newly obtained
evidence-a DVD containing video footage which he claims
“clearly shows [he] was unaware of the drugs being
planted in his car by the government's sole
informant.” Id. at 4. According to Petitioner,
“the government's witness perjured himself by
testifying [to] the events differently as stated in the
Affidavit from the video and thereby committing fraud upon
the court and in violation of federal law.”
Id. Respondent asserts that the petition should be
dismissed because Petitioner fails to satisfy the so-called
“savings clause” under § 2255(e).
§ 2241 is used to challenge the manner in which a
sentence is executed. See Warren v. Miles, 230 F.3d
688, 694 (5th Cir. 2000). Section 2255 is the primary means
under which a federal prisoner may collaterally attack the
legality of his federal conviction and sentence. See Cox
v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir.
1990). A § 2241 petition attacking a federal conviction
and sentence may be considered only if the petitioner
establishes that the remedy under § 2255 is inadequate
or ineffective to test the legality of his detention. See
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).
The burden of demonstrating the inadequacy of the § 2255
remedy rests with the petitioner. See Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). In order to
meet this burden, a petitioner must show that (1) his claim
is based on a retroactively applicable United States Supreme
Court decision, (2) his claim was foreclosed by circuit law
at the time when the claim should have been raised in his
trial, appeal, or first § 2255 motion, and (3) that
retroactively applicable decision establishes that he may
have been convicted of a nonexistent offense. See Garland
v. Roy, 615 F.3d 391, 394 (5th Cir. 2010);
Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001).
fails to satisfy these requirements in all respects. And, his
argument that the actual-innocence and miscarriage-of-justice
standards should provide an exception to the § 2255
savings clause requirements fails, “as there is no
authority extending the actual-innocence gateway to permit
§ 2241 proceedings.” See Perez v.
Stephens, 593 Fed. App'x 402 (5th Cir. 2015) (citing
House v. Bell, 547 U.S. 518 (2006) and Schlup v.
Delo, 513 U.S. 298 (1995)). Petitioner has not
identified any Supreme Court decision that retroactively
applies to his case. Nor has he asserted that he has been
convicted of a nonexistent offense, or that his claims would
be foreclosed by circuit law in a first § 2255 motion.
He acknowledges that a § 2241 petition is not an
alternative to the relief afforded by motion in the
convicting court under § 2255, and he cannot rely on
§ 2241 to avoid procedural hurdles presented under
§ 2255. See Jeffers, 253 F.3d at 830; Pack
v. Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000) (quoting
Williams v. United States, 323 F.2d 672, 673 (10th
Cir.1963)); Tolliver, 211 F.3d at 877.
has not met all three criteria required to invoke the savings
clause of § 2255 as to the claims presented in this
habeas-corpus petition. The Court is therefore without
jurisdiction to consider the petition. See
Christopher v. Miles, 342 F.3d 378, 385 (5th Cir. 2003).
reasons discussed herein, Petitioner's petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241 is
DISMISSED for lack of subject matter
jurisdiction. A certificate of appealability is