United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'Connor United States District Judge
the Court are federal prisoner Hugo Hernandez's
(“Hernandez”) petition for writ of habeas corpus
under 28 U.S.C. § 2241 and brief in support (ECF Nos.
1-2) and the FMC-Fort Worth Warden's response with
appendix (ECF Nos. 11-12). After considering the relief sought by
Hernandez, the record, related briefing, and applicable law,
the Court concludes that Hernandez's § 2241 petition
should be and is hereby DISMISSED for lack
was convicted in the United States District Court for the
Eastern District of Texas, Sherman Division, of conspiracy to
possess with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B). J., United States v. Hernandez, No.
4:11-cr-248-21 (E.D. Tex. Nov. 27, 2013), ECF No.
1026. He was sentenced to 188 months'
imprisonment. Id. Hernandez's conviction and
sentence were affirmed on direct appeal to the Fifth Circuit.
United States v. Hernandez, 578 Fed.Appx. 355 (5th
Cir. Aug. 13, 2014). Review of Hernandez's criminal
docket shows that he never sought § 2255 relief there.
He instead filed the instant § 2241 petition in this
Court. Pet. 1, ECF No. 1.
CLAIMS FOR RELIEF
asserts that the convicting court improperly sentenced him as
a “career offender” because his prior state
controlled substance convictions that were used as predicate
offenses no longer qualify under the recent rulings of
DesCamps v. United States, 570 U.S. 254 (2013),
Molina-Martinez v. United States, 136 S.Ct. 1338
(2016), Mathis v. United States, 136 S.Ct. 2243
(2016), United States v. Hinkle, 832 F.3d 569 (5th
Cir. 2016), and United States v. Tanksley, 848 F.3d
347 (5th Cir.), supplemented by 854 F.3d 284 (5th
Cir. 2017). Mem. 1-6, ECF No. 2. Hernandez seeks to have the
career-offender enhancement vacated. Id. at 7.
motion under § 2255 is the primary means of collaterally
attacking a federal conviction or sentence. Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir.2001) (per curiam)
(citing Tolliver v. Dobre, 211 F.3d 876, 877 (5th
Cir.2000) (per curiam)). “While § 2241 is more
typically used to challenge the execution of a prisoner's
sentence, a federal prisoner may bring a petition under
§ 2241 to challenge the legality of his conviction or
sentence if he can satisfy the mandates of the ‘savings
clause' of § 2255.” Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003) (citing
Reyes-Requena v. United States, 243 F.3d
893, 900-01 (5th Cir. 2001)). The statutory “savings
An application for a writ of habeas corpus in [sic] behalf of
a prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
28 U.S.C. § 2255(e). Under the “savings clause,
” the petitioner has the burden of showing that the
§ 2255 remedy is “inadequate or ineffective to
test the legality of his detention.” Jeffers,
253 F.3d at 830.
cannot rely on § 2241 merely because he might now be
limited in seeking relief under § 2255. Cf. Pack v.
Yusuff, 218 F.3d 448, 453 (5th Cir. 2000) (citing
Tolliver, 211 F.3d at 878) (holding that neither a
prior, unsuccessful § 2255 motion, the limitations bar,
nor successiveness renders the § 2255 remedy inadequate
or ineffective). Moreover, the Fifth Circuit has determined
that, before a petitioner may pursue relief through §
2241 under the language of the § 2255 savings clause, he
must show that:
(1) his claim is based on a retroactively applicable Supreme
Court decision; (2) the Supreme Court decision establishes
that he was “actually innocent” of the charges
against him because the decision decriminalized the conduct
for which he was convicted; and (3) his claim would have been
foreclosed by existing circuit precedent had he raised it at
trial, on direct appeal, or in his original § 2255
Christopher, 342 F.3d at 382 (citing
Reyes-Requena, 243 F.3d at 904 and Jeffers,
253 F.3d at 830).
has not made these showings, and a review of the grounds
asserted in his § 2241 petition shows that he cannot
make them. Hernandez does not claim or attempt to demonstrate
that he was convicted of a nonexistent offense. Rather he
challenges the imposition of his sentence, and not his
conviction, and such claims do not fall within the savings
clause of § 2255(e). See generally Padilla v. United