PEARSON

v.

WARDEN, FCC COLEMAN - MEDIUM

Petitioner David Pearson, an inmate of the Federal penal system, initiated this action on June 19, 2020,1 by filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Petition; Doc. 1). The Petition is before the Court for preliminary review pursuant to the Rules Governing Section 2254 Cases in the United States District Courts (also applicable to petitions brought under 28 U.S.C. § 2241). Rule 4 requires the Court to “promptly examine” a petition, and “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition.” For the reasons discussed below, the Petition is due to be dismissed because the Court lacks subject matter jurisdiction. Background Pearson is a federal inmate currently incarcerated at Coleman Medium Federal Correctional Institution within this district and division. In 2014, Pearson plead guilty to

Typically, collateral attacks on the validity of a federal conviction or sentence must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F. 3d 1363, 1365 (11th Cir. 2003). Challenges to the execution of a sentence, rather than the validity of the sentence itself, are properly brought under 28 U.S.C. § 2241. Antonelli v. Warden, U.S.P. Atlanta, 542 F. 3d 1348, 1352 (11th Cir. 2008). The claim raised in the instant Petition does not address the execution of Pearson’s sentence, but its legality, as he contends that he was unconstitutionally convicted and sentenced. Therefore, § 2255, not § 2241, is the

“inadequate or ineffective,” the Eleventh Circuit has explained that a motion under § 2255 “is inadequate or ineffective to test the legality of a prisoner’s detention only when it cannot remedy a particular kind of claim.” McCarthan v. Dir. Of Goodwill Industries- Suncoast, Inc., 851 F. 3d 1076, 1099 (11th Cir. 2017). Here, Pearson’s claim concerning the indictment was capable of adjudication in his § 2255 proceedings. See Benitez, 564 F. App’x at 499. The Court notes that Rehaif did not announce a new rule of constitutional law such that it would apply retroactively on collateral review. See In re Palacios, 931 F. 3d 1314, 1315 (11th Cir. 2019) (denying application to file successive 2255 raising Rehaif claims because Rehaif did not announce a new rule of constitutional law and the decision is not retroactive in collateral proceedings). Despite the ruling In Re Palacios, the savings clause does not apply. See In re Wright, 942 F. 3d 1063, 1065-66 (11th Cir. 2019) (Rosenbaum, J., concurring) (“And in this Circuit, Wright’s [Rehaif] claim is not cognizable under 28 U.S.C. § 2255(e), either, because in McCarthan[,] by which we are bound, we held that a prisoner may file a second or successive claim for habeas relief, challenging his conviction through that subsection only when the sentencing court is unavailable.”) (footnote omitted); McCarthan, 851 F. 3d at 1086 (“That a court might reject a prisoner's argument does not render his “remedy by motion” an inadequate “means by which” to challenge the legality of his sentence.”). Accordingly, the Petition is due to be dismissed for lack of jurisdiction. ORDERED: 1. Pearson’s Petition (Doc. 1) is DISMISSED for lack of jurisdiction and this case is DISMISSED with prejudice. 2. The Clerk shall enter judgment dismissing this case with prejudice, close this case, and terminate any pending motions. DONE AND ORDERED in chambers, this 26th day of June, 2020.

United States District Judge

Jax - 8 C: David Pearson #05169-104