IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

EARL FRANCIS HART §

VS. § CIVIL ACTION NO. 1:23-CV-165

WARDEN, USP BEAUMONT §

 REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner Earl Francis Hart, a prisoner confined at the United States Penitentiary in

Beaumont, Texas, filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.

The Petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Background

Petitioner is in custody pursuant to a judgment entered in the United States District Court for

the District of Massachusetts in cause number 1:09-CR-1005. Following a jury trial, Petitioner was

found guilty of: conspiracy to possess with intent to distribute Oxycodone (Count 1); attempted

possession of Oxycodone with intent to distribute (Count 2); being a felon in possession of a firearm

and ammunition (Count 3); and using and brandishing a firearm in furtherance of a drug trafficking

crime (Count 4). On January 27, 2011, Petitioner was sentenced to 240 months of imprisonment for

Counts 1 and 2, 293 months for Count 3, and a mandatory term of life imprisonment for Count 4. 

On direct appeal, the United States Court of Appeals for the First Circuit vacated the life sentence

for Count 4 and remanded the case for re-sentencing. United States v. Hart, No. 11-1201 (1st Cir.

Aug. 27, 2012). 

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During his re-sentencing, the district court determined that Petitioner was an armed career

criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and a career offender

under § 4B1.1 of the United States Sentencing Guidelines. Petitioner was re-sentenced to a total of

360 months of imprisonment: 240 months for Counts 1 and 2; 276 months term for Count 3, to be

served concurrently; and 84 months for Count 4, to be served consecutively to the other three

sentences. The sentence was affirmed on appeal. United States v. Hart, No. 13-1199 (1st Cir. Apr.

17, 2014).

Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.

§ 2255. Petitioner argued that his sentence was invalid because he no longer qualified as an armed

career criminal after the United States Supreme Court struck down the residual clause of the ACCA

in Johnson v. United States, 576 U.S. 591 (2015). The district court was not persuaded that

Petitioner had a third qualifying predicate conviction in light of Johnson, but concluded that it was

not necessary to resolve the issue because Petitioner would still be sentenced to 360 months as a

career offender under U.S.S.G. § 4B1.1 since he had two qualifying convictions. Hart v. United

States, 1:09-CR-10005-PBS, slip op. at 1-2 (D. Mass. May 22, 2018). Petitioner filed a notice of

appeal, and the First Circuit denied his request for a certificate of appealability. Hart v. United

States, No. 19-8002 (1st Cir. Dec. 10, 2019). 

The Petition

Petitioner contends that his sentence is illegal because he does not qualify as an armed career

criminal under the ACCA or as a career offender under U.S.S.G. § 4B1.1. 

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Analysis

 Title 28 U.S.C. § 2255 provides the primary means of collaterally attacking a federal

conviction and sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section 2241 is

correctly used to attack the manner in which a sentence is executed. Id. A petition for writ of habeas

corpus is not a substitute for a motion to vacate sentence pursuant to § 2255. Jeffers v. Chandler,

253 F.3d 827, 830 (5th Cir. 2001). A prisoner may use § 2241 as the vehicle for attacking the

conviction only if it appears that the remedy by motion “is inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. § 2255. Petitioner bears the burden of proving the inadequacy

or ineffectiveness of a motion under § 2255. Jeffers, 253 F.3d at 830. A prior unsuccessful § 2255

motion, or the inability to meet the AEDPA’s requirements, does not make § 2255 inadequate or

ineffective. Tolliver, 211 F.3d at 878.

The Fifth Circuit has set forth two requirements Petitioner must satisfy to file a § 2241

petition in connection with the savings clause of § 2255. In Reyes-Requena v. United States, the

Fifth Circuit held that the savings clause of § 2255 applies to a claim that: (i) is based on a

retroactively applicable Supreme Court decision which establishes that the petitioner may have been

convicted of a nonexistent offense and (ii) 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. Reyes-Requena v.

United States, 243 F.3d 893, 904 (5th Cir. 2001). To meet the first, or actual innocence, prong of

this test, the petitioner must prove that, based on a retroactively applicable Supreme Court decision,

he was convicted for conduct that did not constitute a crime. Jeffers, 253 F.3d at 830-31.

Petitioner’s claims regarding his sentence do not meet the Reyes-Requena standard. First,

§ 2255 is not an inadequate or ineffective remedy because he was able to raise his claims in his

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Motion to Vacate, Set Aside, or Correct Sentence. Second, a challenge to the validity of a sentence

enhancement is not the type of claim that warrants relief under § 2241. Kinder v. Purdy, 222 F.3d

209, 213-14 (5th Cir. 2000). Finally, Petitioner’s claims do not meet the Reyes-Requena standard

because Petitioner has not demonstrated that he was convicted for conduct that did not constitute a

crime. Therefore, the Petition should be dismissed. 

Recommendation

This Petition for Writ of Habeas Corpus should be dismissed.

Objections

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings of facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court, except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P.

72. 

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___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 15th day of May, 2023.

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