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Perry v. Beasley

United States District Court, E.D. Arkansas, Eastern Division

October 10, 2018

CARLOS PERRY PETITIONER
v.
GENE BEASLEY, Warden, FCI-Forrest City RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to Chief United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         The record reflects that petitioner Carlos Perry (“Perry”) pleaded guilty in the United States District Court for the Western District of Virginia (“Western District of Virginia”) to, inter alia, one count of mail fraud. See Docket Entry 7, Exhibit 1.[1] United States District Judge James P. Jones sentenced Perry to the custody of the Federal Bureau of Prisons (“BOP”) for a term of 144 months imprisonment. See Docket Entry 7, Exhibit 2. Perry filed a pro se notice of appeal, but the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) dismissed the appeal because he failed to file a timely notice of appeal. See Docket Entry 7, Exhibit 3.

         Perry thereafter filed a motion pursuant to 28 U.S.C. 2255 in the Western District of Virginia. In the motion, he raised the following claims:

... counsel provided ineffective assistance by (1) improperly advising [Perry] to plead guilty to an Information charging crimes that he did not commit; (2) failing to rebut the government's rationale for an upward variance; (3) failing to challenge the loss amount; (4) failing to present mitigating evidence; and (5) failing to argue for a sentence below the guidelines range based on substantial assistance.

See Docket Entry 7, Exhibit 4 at CM/ECF 5. Perry also maintained that Judge Jones abused his discretion by applying an upward variance to the guideline range. Judge Jones denied the motion and a certificate of appealability. See Docket Entry 7, Exhibit 4 and 5. Perry appealed. The Fourth Circuit denied his request for a certificate of appealability and dismissed the appeal. See Docket Entry 7, Exhibit 6.

         Approximately seven months after the Fourth Circuit denied Perry's request for a certificate of appealability, he began the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. In the petition, he again challenged his trial attorney's performance and the sentence imposed by Judge Jones.[2]

         Respondent Gene Beasley (“Beasley”) filed a response to Perry's petition and asked that it be dismissed for lack of subject matter jurisdiction. Beasley so maintained because Perry's petition presented “the same claims he raised in his [28 U.S.C. 2255] motion filed in the sentencing court.” See Docket Entry 7 at CM/ECF 2.

         Perry filed a reply in which he acknowledged that his motion pursuant to 28 U.S.C. 2255 had been denied by Judge Jones, and a request for a certificate of appealability had been denied by the Fourth Circuit. Perry nevertheless maintained that the United States District Court for Eastern District of Arkansas (“Eastern District of Arkansas”) had subject matter jurisdiction to consider the petition at bar, one pursuant to 28 U.S.C. 2241.

         “Generally, a federal inmate may challenge his conviction or sentence only with the sentencing court through a motion to vacate, set aside, or correct [his] sentence under 28 U.S.C. 2255.” See Alexander v. Haynes, 2013 WL 5507665, 3 (E.D. Ark. 2013) (Miller, J.). He may challenge the execution of his sentence, though, by filing a petition pursuant to 28 U.S.C. 2241 in the district of his incarceration. See Id. The scope of the latter proceeding is as follows:

A court cannot entertain a petition for habeas corpus under 2241, “if it appears that the applicant has failed to apply for relief, by [2255] motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e) (emphasis added). This latter provision is generally referred to as 2255's savings clause.
To qualify for the savings clause, a petitioner 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, 154 L.Ed.2d 117 (2002). The fact that an individual is barred from filing a 2255 motion for procedural reasons does not render the remedy inadequate or ineffective. Lopez-Lopez, 590 F.3d at 907. The 2255 remedy is not inadequate or ineffective because the claim was previously raised in a 2255 motion but rejected because the petitioner was denied leave to file a second or successive 2255 petition or because a 2255 petition was time-barred. Id.

See Id. The phrase “inadequate or ineffective” has not been thoroughly defined. See United States v. Lurie, 207 F.3d 1075 (8th Cir. 2000).[3] Courts have, though, identified some of the conditions a petitioner must satisfy to gain the benefit of the savings clause. For instance, in Mathison v. Berkebile, 988 F.Supp.2d 1091, 1097-1098 (D.S.D. 2013), a federal district court in this circuit adopted the ...


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