Case: 19-60754 Document: 00515816103 Page: 1 Date Filed: 04/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 9, 2021
No. 19-60754 Lyle W. Cayce
Clerk
Demeko Green,
Petitioner—Appellant,
versus
Warden C. Rivers,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CV-611
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Demeko Green, a federal prisoner currently incarcerated in
Mississippi, was convicted in the United States District Court for the
Western District of Tennessee for conspiracy to possess at least one kilogram
of heroin with intent to distribute. Based on Green’s prior federal and
Tennessee drug convictions, the sentencing court determined that Green
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60754
was a career offender under § 4B1.1(b)(1) of the United States Sentencing
Guidelines and sentenced him to 200 months’ imprisonment.
Green unsuccessfully moved to vacate his sentence under 28 U.S.C.
§ 2255 in the Western District of Tennessee. Green then challenged his
sentence by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241
in the Southern District of Mississippi. In his § 2241 petition, which is the
subject of this appeal, Green argued that the district court erred in applying
the § 4B1.1(b)(1) career offender sentencing enhancement, based on the
Sixth Circuit’s decision in United States v. Havis, 927 F.3d 382 (6th Cir.
2019). The district court sua sponte dismissed Green’s petition with prejudice
as to jurisdiction and without prejudice “in all other respects.” Green
appeals, arguing that the district court erred in concluding that it did not have
jurisdiction over his petition.
We review de novo a district court’s dismissal of a § 2241 petition on
the pleadings. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
A writ of habeas corpus under § 2241 and a motion to vacate a
sentence under § 2255 are “distinct mechanisms for seeking post-conviction
relief.” Id. The former “attacks the manner in which a sentence is carried
out” and must be filed in the district where the defendant is incarcerated,
while the latter provides a means for collaterally attacking the validity of a
conviction or sentence and must be filed in the sentencing court. Id. at 451–
52. Because Green challenges the application of the career offender
sentencing enhancement, an alleged error that occurred at sentencing, a
§ 2255 motion is the proper vehicle for this challenge. See Cox v. Warden,
Fed. Detention Ctr., 911 F.2d 1111, 1114 (5th Cir. 1990).
However, a petitioner may use § 2241 to challenge the validity of his
sentence if he can satisfy the § 2255 savings clause, which requires the
petitioner to show that the remedy provided for under § 2255 is “inadequate
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No. 19-60754
or ineffective.” Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001). The petitioner bears the burden of establishing that § 2255’s savings
clause should apply. Id. To do so, the petitioner must show both that his claim
(1) “is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent
offense” and (2) “was foreclosed by circuit law at the time when the claim
should have been raised in the petitioner’s trial, appeal, or first § 2255
motion.” Id. at 904.
Green cannot proceed with his § 2241 petition because he fails to
make the first showing. Green does not base his challenge to the career
offender sentencing enhancement on any retroactively applicable Supreme
Court decision. He instead relies solely on the Sixth Circuit’s decision in
Havis. This is insufficient for purposes of satisfying § 2255’s savings clause.
Because Green cannot proceed with his § 2241 petition, the district
court properly determined that it did not have jurisdiction and dismissed the
petition. We therefore AFFIRM.
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