Opinion
Civil Action No. 4:04-CV-0846-Y.
February 25, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The findings, conclusions, and recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Randy Phillips, Reg. No. 04954-043, is a federal prisoner incarcerated in FMC-Fort Worth in Fort Worth, Texas.
Respondent Cole Jeter is Warden of FMC-Fort Worth.
C. PROCEDURAL HISTORY
Apparently, in the Southern District of Mississippi, Case No. 1:98-CR-2-WJG-1, Phillips was convicted of a drug-related offense in 1998 and is serving a 151-month sentence. (Petition at 1-2.) He has filed one or more motions to vacate his conviction and/or sentence under 28 U.S.C. § 2255 in that court. See PACER, U.S. Party/Case Index, Criminal Docket for # 1-98-CR-2-WJG-1, entries for June 29, 1999 March 26, 2001. Phillips filed his petition under § 2241 in this division, where he is currently serving his sentence.
D. DISCUSSION
By the instant habeas corpus action, Phillips challenges his sentence on the basis of the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738, 756 (2004) (reaffirming holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that "any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt"). Specifically, he contends his 151-month sentence was enhanced under the federal sentencing guidelines from 16 months to 151 months based on additional fact-finding by the trial court under a preponderance-of-the-evidence standard in violation of his Fifth and Sixth Amendment rights. (Petition at 3-4.)
The threshold question is whether Phillips's claim is properly raised in a § 2241 habeas petition. Typically, § 2241 is used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). Section 2255, on the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241 may be used by a federal prisoner to challenge the legality of his conviction or sentence only if he can satisfy the mandates of the so-called § 2255 "savings clause." See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). Section 2255 provides that a prisoner may file a writ of habeas corpus if a remedy by § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255. To establish that a § 2255 motion is inadequate or ineffective, the prisoner must show that: (1) his claim is based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense, and (2) his claim was foreclosed by circuit law at the time when the claim should have been raised in his trial, appeal, or first § 2255 motion. Reyes-Requena, 243 F.3d at 904. The petitioner bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). A prior unsuccessful § 2255 motion, or the inability to meet the statute's second or successive requirement, does not make § 2255 inadequate or ineffective. Jeffers, 253 F.3d at 830; Toliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Phillips has not provided any valid reason why the § 2255's remedy is either inadequate or ineffective. He contends that he is entitled to seek § 2241 relief under the § 2255 savings clause because his claim under Blakely/Booker is not cognizable in a second or successive § 2255 and because he is "actually innocent" of the sentence imposed. (Petition at 6-8; Pet'r Memorandum at 6-9.) Although the Supreme Court's decisions in Blakely and Booker had not yet been decided at the time of Phillips's trial, appeal, and/or prior § 2255 motions, Phillips's claim does not implicate his conviction for a substantive offense. Nor has the Supreme Court expressly declared Blakely or Booker to be retroactive to cases on collateral review. See Booker, 125 S. Ct. at 769 (Op. by Breyer, J.) (expressly extending holding "to all cases on direct review"); Schriro v. Summerlin, 124 S. Ct. 2519, 2526 (2004) (holding Ring v. Arizona, 536 U.S. 584 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review); In re Anderson, No. 05-10045, slip op., 2005 WL 123923, at *2-4 (11th Cir. Jan. 21, 2005); Green v. United States, No. 04-6564, slip op., 2005 WL 237204, at *1 (2d Cir. Feb. 2, 2005); McReynolds v. United States, Nos. 04-2520, 04-2632 04-2844, slip op., 2005 WL 237642, at *1-2 (7th Cir. Feb. 2, 2005). The fact that Phillips may be precluded from raising his claims in a second or successive § 2255 motion does not make that remedy "inadequate or ineffective." See Jeffers, 253 F.3d at 830. Under these circumstances, Phillips is precluded from challenging the legality of his sentence under § 2241.
II. RECOMMENDATION
Because Phillips has not made the showing required to invoke the savings clause of § 2255 as to the claim presented in this habeas corpus proceeding, it is recommended that Phillips's petition for writ of habeas corpus under § 2241 be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until March 18, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 18, 2005, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.