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Hernandez v. Wilson

United States District Court, N.D. Texas, Fort Worth Division

May 15, 2019

ERIC D. WILSON, Warden, FMC-Fort Worth, Respondent.


          Reed O'Connor United States District Judge

         Before 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).[1] 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 of jurisdiction.

         I. BACKGROUND

         Hernandez 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.[2] 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.


         Hernandez 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.

         III. ANALYSIS

         A 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 clause” provides,

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.

         Hernandez 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 petition.

Christopher, 342 F.3d at 382 (citing Reyes-Requena, 243 F.3d at 904 and Jeffers, 253 F.3d at 830).

         Hernandez 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 States, ...

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