Darren Lewis v. Chris McConnell ( 2019 )

Case: 18-31271 Document: 00515188609 Page: 1 Date Filed: 11/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-31271 November 6, 2019
Summary Calendar
Lyle W. Cayce
Clerk
DARREN G. LEWIS,
Petitioner-Appellant
v.
CHRIS MCCONNELL,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-1003
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Darren G. Lewis, federal prisoner # 47027-177, filed a pro se 28 U.S.C.
§ 2241 petition in the Western District of Louisiana, where he is currently
incarcerated. Relying on Johnson v. United States, 135 S. Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), Lewis argued that the definition of
“crime of violence” in the residual clause of 18 U.S.C. § 924(c)(3)(B) was
unconstitutionally vague and that, therefore, his 84-month consecutive
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-31271 Document: 00515188609 Page: 2 Date Filed: 11/06/2019
No. 18-31271
sentence for violating 18 U.S.C. § 924(c) by brandishing a firearm during and
in relation to a crime of violence could not stand. The district court dismissed
the § 2241 petition for lack of jurisdiction.
Lewis contends that the district court erred in dismissing his § 2241
petition. He asserts that the remedy provided by 28 U.S.C. § 2255 is
inadequate because it cannot be used to bring a claim regarding the reach or
meaning of a criminal statute; therefore, he argues, his claim is cognizable in
a § 2241 petition because he may have been convicted of a nonexistent offense.
Lewis devotes much of his brief to an attack on the constitutionality of
§ 924(c)(3)(B). Our review is de novo. See Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000).
A § 2241 petition and a § 2255 motion “are distinct mechanisms for
seeking post-conviction relief.” Id. Section 2255 is the primary mechanism for
collaterally attacking a federal sentence, and a § 2255 motion must be filed
with the sentencing court. Id. “A petition filed under § 2241 that attacks
errors that occurred at trial or sentencing is properly construed as a § 2255
motion.” Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005). A prisoner
challenging the validity of his conviction ordinarily must do so under § 2255
and may proceed under § 2241 only if he shows that his § 2255 remedy was
inadequate or ineffective. Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.
2000).
Although the Supreme Court has held that § 924(c)(3)(B) is
unconstitutionally vague, see United States v. Davis, 139 S. Ct. 2319, 2336
(2019), and we have determined that Davis applies retroactively on collateral
review of an initial § 2255 motion, see United States v. Reece, 938 F.3d 630,
2
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No. 18-31271
634-35 (5th Cir. 2019), 1 Lewis has failed to show that his claim meets the
requirements of the savings clause. This is so because the predicate for his
§ 924(c) conviction, a Hobbs Act robbery offense, is categorically a crime of
violence under the elements clause of § 924(c)(3)(A). See United States v.
Bowens, 907 F.3d 347, 353-54 & nn.10-11 (5th Cir. 2018), cert. denied, 139 S.
Ct. 1299 (2019); United States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017).
In view of the foregoing, the district court’s dismissal for lack of
jurisdiction is AFFIRMED.
1 Lewis has brought Davis and Reece to our attention by filing letters pursuant to
Federal Rule of Appellate Procedure 28(j).
3