Opinion
3:04-CV-1865-P.
November 2, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought by a federal prisoner pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is currently confined at the Federal Correction Institution in Seagoville, Texas.
Statement of Fact: Following his plea of not guilty, Petitioner was convicted of mail fraud, conspiracy to commit mail fraud, wire fraud, and money laundering and aiding and abetting.United States v. Taylor, 3:97cr254-P (N.D. Tex., Dallas Div.). He was sentenced to a total sentence of 121 months, a three-year term of supervised release, and restitution of $2,056,390.97. On May 5, 1999, the Fifth Circuit Court of Appeals dismissed Petitioner's direct appeal for lack of jurisdiction, and on January 24, 2000, the United States Supreme Court denied his petition for writ of certiorari.
Prior to filing this action, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, see No. 3:99cv1031-P, a motion for downward departure of his criminal history category pursuant to Fed.R.Civ.P. 60(b)(1) and (b)(2), and a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking a downward departure, see No. 3:03cv2307-P. All actions were either denied or dismissed.
In this § 2241 action, Petitioner contends the prosecutor withheld potentially exculpatory evidence at the time of his trial in violation of his due process rights.
Findings and Conclusions: Although Petitioner denominates his current petition as one for relief under § 2241, the petition clearly seeks to attack the validity of his federal conviction and, thus, the legality of the sentence that he is currently serving. A collateral attack on a federal criminal conviction is generally limited to a motion to vacate, correct or set aside sentence under 28 U.S.C. § 2255. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden, Fed. Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990). A § 2241 habeas petition is properly construed as a § 2255 motion if it seeks relief based on errors that occurred at trial or sentencing. Tolliver, 211 F.3d at 877-88. Habeas relief under § 2241 may be appropriate when the remedy provided under § 2255 is "inadequate or ineffective." — i.e., the so-called "savings clause." Jeffers, 253 F.3d at 830. "A § 2241 petition is not, however, a substitute for a motion under § 2255, and the burden of coming forward with evidence to show the inadequacy or ineffectiveness of a motion under § 2255 rests squarely on the petitioner." Id.
Since Petitioner is incarcerated in the Dallas Division of the Northern District of Texas, this Court is the appropriate division to make the determination whether Petitioner may proceed under 28 U.S.C. § 2241. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999) (citing, United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992)).
The savings clause of § 2255 states as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
(Emphasis added).
In Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001), the Fifth Circuit recently held that the savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision, which establishes that petitioner may have been convicted of a nonexistent offense, and (ii) 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. See also Jeffers, 253 F.3d 827.
The first prong of the Reyes-Requena's savings-clause test requires that a retroactively applicable Supreme Court decision establish that the petitioner is "actually innocent." SeeReyes-Requena, 243 F.3d at 903-04. In explaining the requirement, the Fifth Circuit stated that "the core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law." Id. at 903.
Petitioner has not provided any valid reason why the § 2255's remedy is either inadequate or ineffective. "A prior unsuccessful § 2255 motion, or the inability to meet the AEDPA's second or successive requirement, does not make § 2255 inadequate or ineffective." Jeffers, 253 F.3d at 830; see also Toliver, 211 F.3d at 878. Similarly, the mere fact that the limitation period set out in § 2255 may bar Petitioner from filing an untimely § 2255 motion does not render the remedy provided by that section inadequate or ineffective. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (citingCaravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (stating that statute of limitations bar to filing a second § 2255 motion, without more, is insufficient to demonstrate inadequacy or inefficacy)).
Nor does Petitioner's Brady claim fall under the savings clause. His Brady claim is not (i) based on a retroactively applicable Supreme Court decision which established that the petitioner may have been convicted of a nonexistent offense, and (ii) 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. Reyes-Requena, 243 F.3d at 904.
Accordingly, Petitioner is not entitled to relief under § 2241 and his petition should be denied.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court deny the habeas corpus petition pursuant to 28 U.S.C. § 2241.
A copy of this recommendation will be mailed to Petitioner James E. Taylor, #31419-077, BOP, FCI Seagoville, P.O. Box 9000, Seagoville, Texas 75159.