Beras v. Johnson, No. 18-30684 (5th Cir. 2020)Annotate this Case
Petitioner, a federal prisoner, sought postconviction review of his conviction for money laundering under 28 U.S.C. 2241, rather than 28 U.S.C. 2255. Petitioner acknowledged that he cannot successfully file a section 2255 motion because he has previously filed and lost several of them.
The Fifth Circuit dismissed the petition as an abuse of the writ, holding that there are two circumstances where a section 2241 application should be dismissed as an abuse of the writ: first, a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice; and second, it is an abuse of the writ for a prisoner to raise the same claim a second time. The court held that both circumstances apply to petitioner's section 2241 application. In this case, petitioner filed a section 2241 application in the Northern District of Ohio in 2012—almost four years after Cuellar v. United States, 553 U.S. 550 (2008)—but did not include a Cuellar claim. Furthermore, he raised his Cuellar claim in his second second 2241 application to the Northern District of Ohio.