IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION

DANIEL MILLER §

v. § CIVIL ACTION NO. 5:23cv37

WARDEN, FCI-TEXARKANA §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Petitioner Daniel Miller, an inmate of the Federal Correctional Institution at Texarkana 

proceeding pro se, filed this petition for the writ of habeas corpus ostensibly challenging the 

calculation of his sentence. The petition was referred to the undersigned United States Magistrate 

Judge pursuant to 28 U.S.C. 636(b)(1) and (3) and Local Rule CV-72 of the Local Rules of Court 

for the Eastern District of Texas.

I. The Petitioner’s Claims

Petitioner was convicted in the Western District of Arkansas of four counts of aiding and 

abetting the distribution of methamphetamine and one count of conspiracy to distribute a 

methamphetaminemixture. He received concurrentsentences of 360monthsin prison on December 

2, 2011. His conviction was affirmed on direct appeal by the Eighth Circuit Court of Appeals. U.S. 

v. Miller, 698 F.3d 699, 702 (8th Cir. 2012).

Petitioner then filed a motion to vacate or correct sentence in the trial court raising 16 

grounds for relief. This motion to vacate or correct sentence was denied on October 16, 2015. 

United States v. Miller, crim. no. 1:11cr40009, 2013 U.S. Dist. LEXIS 189905, 2014 WL 12704769 

(W.D.Ark, April 24, 2013), Report adopted at 2015 U.S. Dist. LEXIS 141186, 2015 WL 6085719

(W.D.Ark., October 15, 2016).1

1

The Report reflects a signing date of April 24, 2013, but it was docketed on April 25, 2014.

1

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In his present habeas petition, Petitioner contends that his pre-sentence investigation report 

(PSR) was incorrect because: (1) it said that he was on probation at the time of the instant offense, 

which he states that he was not; (2) it said that he had been convicted of burglary of a vehicle in the 

State of Texas but he has never been convicted of a felony in Texas, and a charge he had in Cass 

County was later dismissed; and (3) the PSR said that his work history and background could not 

be substantiated, but he has documents showing his work history from the time he was 16, in 1989, 

to the time of his arrest in 2011.

Petitioner argues that his claims can only be vindicated through a habeas corpus petition 

because he is challenging the way his sentence was calculated and carried out. He maintains that 

a motion to vacate or correct sentence is inadequate or ineffective to test the validity of this issue.

II. Discussion

Contrary to Petitioner’s contention, the Fifth Circuit has squarely held that challenges to 

allegedly incorrect information in a pre-sentence investigation report fall under the purview of 28

U.S.C. § 2255, not 28 U.S.C. § 2241. Pawlik v. Maiorana, 687 F.App’x 421, 422 (5th Cir. 2017). 

This is because challenges to the correctness of factual findings in the PSR relate to alleged errors 

occurring at or before sentencing, meaning they are properly raised in a § 2255 motion to vacate or 

correct sentence and not a § 2241 habeas corpus petition. Id., (citing Pack v. Yusuff, 218 F.3d 448, 

451 (5th Cir. 2000) and Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 

1990)). To the extent Petitioner seeks to proceed under § 2241, his petition is without merit.

This Court lacks jurisdiction to construe Petitioner’s petition as a § 2255 motion because he 

has not shown that he has received permission to file a successive petition and because Petitioner 

was convicted and sentenced in the Western District of Arkansas, not the Eastern District of Texas. 

See U.S. v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015) (district court lacks jurisdiction to consider a 

successive § 2255 motion filed without authorization from the appellate court); Benson v.Justice, 

511 F.3d 486, 487 (5th Cir. 2007) (only the sentencing court has § 2255 jurisdiction).

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Nor can Petitioner invoke the “savings clause” of 28 U.S.C. § 2255, which permits federal 

prisoners to seek post-conviction relief through a habeas corpus petition rather than a motion to 

vacate sentence. Such relief is available only in very limited circumstances; in order to proceed 

under the savings clause, the petitioner must show that the remedy under § 2255 is “inadequate or 

ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see Hammoud v. Ma’at, 49 

F.4th 874, 879 (5th Cir. 2022).

The Fifth Circuit has held that the savings clause of § 2255 only applies to a claim (1) that 

is based on a retroactively applicable Supreme Court decision which established that the petitioner 

may have been convicted of a non-existent offense, and (2) that 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. 

Carmona v. Warden, Federal Correctional Institution Beaumont Medium, slip op. no. 22-40834, 

2023 U.S. App. LEXIS 17212, 2023 WL 4399237 (5th Cir. 2023) (citing Reyes-Requena v. United 

States, 243 F.3d 893, 904 (5th Cir. 2001)). This showing requires that a retroactively applicable 

Supreme Court decision establishes that the petitioner is actually innocent, meaning that he may 

have been imprisoned for conduct which was not prohibited by law. Reed v. Clay, 678 F.App’x 233, 

234 (5th Cir. 2018), quoting Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001); Christopher

v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). The petitioner bears the burden of demonstrating that 

the remedy under § 2255 is inadequate or ineffective. Pack, 218 F.3d at 452.

Petitioner’s claims are not based on a retroactively applicable Supreme Court decision 

establishing that he was convicted of a non-existent offense, nor was his claim foreclosed by circuit 

law at the time of his trial, appeal, or first § 2255 motion. The fact that Petitioner has previously 

sought § 2255 relief, and is thus foreclosed from filing a second § 2255 motion absentpermission 

from the Eighth Circuit Court of Appeals, does not render the remedy under § 2255 “inadequate or 

ineffective” for purposes of the savings clause. Penson v. Warden, Federal Correctional Institution 

Three Rivers, 747 F.App’x 976, 977 (5th Cir. 2019), citing Jeffers, 253 F.3d at 830. To the extent 

Petitionerseeksto bring his claims under the savings clause of § 2255, his petition is without merit.

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RECOMMENDATION

It is accordingly recommended that the above-styled petition for the writ of habeas corpus 

be dismissed with prejudice, but without prejudice to Petitioner’s right to pursue his claims in the 

Western District of Arkansas, including but not limited to seeking permission from the Eighth 

Circuit Court of Appeals to file a successive § 2255 motion to vacate or correct sentence.

A copy of these findings, conclusions and recommendationsshall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objections within 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

.

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 26th day of February, 2024.

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