United States District Court, E.D. Arkansas, Eastern Division
LUIS GERARDO GARCIA REG. #95616-279 PETITIONER
GENE BEASLEY, Warden, FCI - Forrest City RESPONDENT
ORDER OF DISMISSAL 
before the Court is a 28 U.S.C. § 2241 Petition for a
Writ of Habeas Corpus filed by Petitioner, Luis Gerardo
Garcia (“Garcia”), who was incarcerated at the
Forrest City, Arkansas, Federal Correctional Institution when
he filed his Petition. Doc. 1. In the petition, Garcia
challenges his conviction, pursuant to a guilty plea, and the
sentence imposed by the United States District Court for the
Southern District of Texas (Brownsville Division). United
States v. Garcia, 1:11-CR-00636 (“Garcia
I”). The relevant facts supporting Garcia's
collateral attack on his federal conviction and sentence are
set forth below.
November 9, 2011, Garcia pled guilty to possession with
intent to distribute more than 5 kilograms of cocaine. On
February 14, 2012, Garcia was sentenced to imprisonment for
175 months. Doc. 9-1 (Garcia I Judgment).
Garcia did not file a direct appeal challenging either his
conviction or sentence.
March 25, 2013, Garcia filed a motion to vacate his sentence
in Garcia I pursuant to 28 U.S.C. § 2255.
Doc. 9-2. Garcia argued his counsel was ineffective
because: (1) Garcia did not understand the plea agreement;
(2) Garcia was innocent of the charges to which he pled
guilty; (3) Garcia's counsel did not investigate the
facts with due diligence; (4) Garcia's sentence was
improperly enhanced. On November 19, 2013, the Garcia
I court dismissed Garcia's § 2255 motion as
time-barred. Doc. 9-3.
attempted to appeal the denial of § 2255 relief to the
Fifth Circuit. However, the appeal was dismissed for failure
to prosecute after Garcia failed to timely comply with the
requirements for a certificate of appealability. Doc.
Garcia points out in his Response, he also attempted,
unsuccessfully, to file an out of time appeal of the denial
of his § 2255 Motion and requested permission to file a
Second or Successive § 2255 Motion.
March 30, 2018, Garcia filed the § 2241 habeas action
now before this Court. In his § 2241 petition, he
contends: (1) his defense counsel has a non-waivable conflict
of interest due to the “collateral waiver”
provision in his plea agreement, which prevented him from
pursuing a § 2255 proceeding challenging his
counsel's effectiveness; (2) the government committed
fraud by placing the non-waivable conflict of interest
provision in the plea agreement.
has filed a Motion to Dismiss Garcia's Petition
contending that this Court lacks subject matter jurisdiction
to consider Garcia's § 2241 Petition. Garcia has
filed a Response opposing Respondent's Motion to Dismiss.
Doc. 14. Thus, the issues are joined and ready for
over a federal prisoner's collateral attack on his
conviction or sentence is governed by the well-recognized
distinction between claims that attack the validity
of a federal conviction or sentence, and claims that
challenge the execution of a federal sentence. As a
general rule, collateral challenges to a federal conviction
or sentence must be raised in a motion to vacate
filed in the sentencing court under 28 U.S.C. §
2255, rather than by a habeas petition filed in the court
of incarceration under 28 U.S.C. § 2241.
Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir.
2010); Abdullah v. Hedrick, 392 F.3d 957, 959 (8th
Cir. 2004). Because a § 2255 motion attacks the validity
of the conviction or sentence, it is “a further step in
the movant's criminal case, ” and subject matter
jurisdiction lies with the court which convicted and
sentenced the federal prisoner. DeSimone v. Lacy,
805 F.2d 321, 323 (8th Cir. 1986); Thompson v.
Smith, 719 F.2d 938, 940 (8th Cir. 1983).
limited exception to this rule is found in the “savings
clause” of § 2255(e), which permits a federal
court in the district of incarceration to entertain a §
2241 habeas petition challenging the validity of a conviction
or sentence only if t h e r e m e d y under §
2255 is “inadequate or ineffective to test the legality
of his detention.” Hill v. Morrison, 349 F.3d
1089, 1091 (8th Cir. 2003). Stated differently, the court of
incarceration has subject matter jurisdiction over a
collateral attack on a conviction or sentence rendered by
another district court only if the remedies in the
sentencing district are inadequate or ineffective. A
petitioner bears the burden of demonstrating that the §
2255 remedy is inadequate or ineffective.
Lopez-Lopez, 590 F.3d at 907; Hill, 349
F.3d at 1091.
argues that he has demonstrated “that relief under
§ 2255 is not available to him.” While this
appears to be true, it has no bearing on whether Garcia is
entitled to the benefit of the “savings clause.”
For Garcia to pursue a collateral attack on his federal
conviction under § 2241, “more is required than
demonstrating that there is a procedural barrier to bringing
a § 2255 motion.” United States v. Lurie,
207 F.3d 1075, 1077 (8th Cir. 2000). A § 2255 motion is
not “inadequate or ineffective” merely because:
(1) “§ 2255 relief has already been denied;”
(2) the “petitioner has been denied permission to file
a second or successive § 2255 motion;” (3)
“a second or successive § 2255 motion has been
dismissed”; or (4) the “petitioner has allowed
the one year statute of limitations and/or grace period to
addition, the Eighth Circuit has consistently held that the
“savings clause” may not be invoked to raise an
issue under § 2241 which could have been, or
actually was, raised in a direct appeal or a § 2255
motion in the sentencing district. Lopez-Lopez, 590
F.3d at 907; Hill, 349 F.3d at 1092; Nichols v.
Symmes, 553 F.3d 647, 650 (8th Cir. 2009).
also argues that his § 2255 remedy was “inadequate
or ineffective” because he is actually innocent.
Doc. 14 at 5. However, Garcia fails to present any
evidence or argument to support this bare assertion. He also
suggests that he may be factually innocent due to a change in
the law, but he fails to identify any change to the law
impacting his 2011 drug conviction. Finally, even if
Garcia could identify some support for his actual innocence
claim, he fails to show why he lacked the opportunity to
present that claim to the court that convicted and sentenced
him. See Abdullah v. Hedrick, 392 F.3d 957, 962
(8th Cir. 2004) (even if petitioner seeking to
prove that § 2255 was inadequate or ineffective to test
the legality of his ...