United States District Court, E.D. Arkansas, Eastern Division
MARCUS A. NAVEJAR Reg #XXXXX-XXX, Petitioner,
CV. RIVERA, Warden, Federal Correctional Complex, Forrest City, Arkansas, Respondent.
A Navejar, Plaintiff, Pro Se.
Rivera, Defendant, represented by Richard M. Pence, Jr., U.S.
DEERE, Magistrate Judge.
Procedure for Filing Objections
Recommended Disposition ("Recommendation") has been
sent to Judge James M. Moody Jr. Any party may file written
objections to this recommendation. Objections should be
specific and should include the factual or legal basis for
the objection. If the objection is to a factual finding,
specifically identify that finding and the evidence that
supports your objection. Your objections must be received in
the office of the United States District Court Clerk within
fourteen (14) days of this Recommendation.
objections are filed, Judge Moody can adopt this
Recommendation without independently reviewing the record.
Failure to file timely objections may result in waiver of the
right to appeal questions of fact.
Marcus A. Navejar pleaded guilty in the United States
District Court for the District of Nebraska to one count of
conspiracy to distribute methamphetamine. The Court sentenced
Mr. Navejar to a term of 151 months in the Bureau of Prisons,
to run consecutive to a state sentence that had been imposed
by the District Court of Lancaster County, Nebraska. (Docket
entry #3-1 at pp. 1-2) Mr. Navejar's sentence was later
reduced to 77 months. (#3-2 at p. 1)
Navejar did not raise a timely motion under 28 U.S.C. Â§ 2255
with the sentencing court. Instead, he filed this pro se
petition for writ of habeas corpus under 28 U.S.C. Â§ 2241. In
his petition, Mr. Navejar claims that under the federal
sentencing guidelines, the sentencing court should have
ordered his federal sentence to run concurrently with his
state sentence. (#1) For relief, he asks this Court to order
his federal sentence to run concurrently with his state
sentence, which would decrease the length of his federal
sentence by 13 months and 25 days. (#1 at p. 4)
his petition was pending, Mr. Navejar filed a motion with the
sentencing court requesting nunc pro tunc
designation for time he spent in state custody serving his
state sentence. Navejar v. U.S., No. 4:12CR3139
docket entry #64 (D. Neb. July 5, 2016). The Court denied the
motion. Id. at docket entry #65 (July 7, 2016).
a federal inmate may challenge his conviction or sentence
only with the sentencing court through a motion to vacate,
set aside, or correct their sentence, under 28 U.S.C. Â§ 2255.
Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir.
2010)(citing Abdullah v. Hedrick, 392 F.3d 957, 959
(8th Cir. 2004), cert. denied, 545 U.S. 1147, 125
S.Ct. 2984 (2005)). A habeas corpus petition under 28 U.S.C.
Â§ 2241, on the other hand, attacks the execution of a
sentence, or the manner in which the sentence is being
carried out, and it is within the subject-matter jurisdiction
of the court presiding in the judicial district where the
prisoner is being held. Matheny v. Morrison, 307
F.3d 709, 711-712 (8th Cir. 2002).
cannot entertain a petition for habeas corpus under Â§ 2241,
"if it appears that the applicant has failed to apply
for relief, by [Â§ 2255] motion, to the court which sentenced
him, or that such court has denied him relief, unless it also
appears that the remedy by [Â§ 2255] motion is inadequate or
ineffective to test the legality of his detention." 28
U.S.C. Â§ 2255(e)(emphasis added). The last clause is a
provision generally referred to as Â§ 2255's "savings
clause." Abdullah, 392 F.3d at 959.
petitioner who wishes to take advantage of the savings clause
must demonstrate that seeking relief from the sentencing
court would be inadequate or ineffective.
Lopez-Lopez, 590 F.3d at 907 (citing
Abdullah, 392 F.3d at 959). But this exception is a
"narrowly circumscribed safety valve." United
States ex rel. Perez v. Warden, FMC Rochester, 286 F.3d
1059, 1061-62 (8th Cir. 2002), cert. denied, 537 U.S.
869, 123 S.Ct. 275 (2002). The fact that an individual
is barred from filing a Â§ 2255 motion for procedural reasons
does not render the remedy inadequate or ineffective so as to
permit a petitioner to file under Â§ 2241.
Lopez-Lopez, 590 F.3d at 907. The Â§ 2255 remedy is
not inadequate or ineffective because the claim was