Opinion
3:03-CV-2483-G
January 7, 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 District Court in implementation thereof, the subject cause 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 filed by a prisoner confined at the Federal Correction Institution in Seagoville, Texas, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Petitioner has paid the $5.00 filing fee.
Statement of Facts: Petitioner was convicted of arson in violation of 18 U.S.C. § 844(i) in the United States District Court for the Western District of Tennessee, Memphis Division. United States v. Anderson, 2:98-CR-20073(01). Punishment was assessed at sixty months imprisonment. On August 16, 2001, the Sixth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Anderson, No. 99-6035, 2001 WL 966277 (6th Cir. Aug. 16, 2001). Petitioner then unsuccessfully sought post-conviction relief pursuant to 28 U.S.C. § 2255. See United States v. Anderson, 3:02-CV-2490 (W.D. Tenn.).
In this action, Petitioner alleges the government failed to establish that the property he was accused of burning had been actively employed for commercial purposes at the time of the offense. He relies on the Supreme Court's opinion in Jones v. United States, 529 U.S. 848 (2000), and the Eighth Circuit's opinion in United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000). Findings and Conclusions: Although Petitioner again denominates his petition as one for relief under § 2241, the petition clearly seeks to attack the validity of the conviction for which he is presently incarcerated.
On August 4 and August 14, 2003, petitioner filed three additional habeas actions in this court pursuant to § 2241, seeking to challenge the conviction he is presently serving. See Anderson v. Wendt, 3:03cv1753-N (filed as a motion for leave to file a petition for writ of habeas corpus); Anderson v. Wendt, 3:03cv1754-M; and Anderson v. Wendt, 3:03cv1825-M (assigned to Magistrate Judge Sanderson). On September 29 and October 2, 2003, the district court adopted the recommendations of the magistrate judge and entered judgment denying the habeas petitions in Nos. 3:03cv1754-M and 3:03cv1825-M, and denying the motion for leave to file in No. 3:03cv1753-N. Petitioner did not appeal.
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)).
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.); 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 maybe 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.
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 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 Fifth Circuit makes clear that to fall under the savings clause, the Supreme Court's decision that the petitioner is relying on "must be retroactively applicable on collateral review." Reyes-Requena, 243 F.3d at 904. In this case, Petitioner relies on the Supreme Court's decision in Jones v. United States, 529 U.S. 848 (2000), which was decided on May 22, 2000, while his direct appeal was pending before the Sixth Circuit. His claims, therefore, do not satisfy the savings clause of 28 U.S.C. § 2255, and thus he is not entitled to utilize 28 U.S.C. § 2241.
This action is Petitioner's fourth § 2241 habeas petition which is subject to dismissal, in less than six months, for failure to satisfy the savings clause.See Note 1, supra.The instant petition was prepared by Anderson after his prior three petitions, which included challenges to the same conviction, were dismissed. In none of these filings has Petitioner properly invoked 28 U.S.C. § 2241 to challenge his conviction and sentence. Rather, Petitioner continues to submit pleadings to this Court seeking relief to which he has repeatedly been told he is not entitled.
To ensure that Petitioner files no additional frivolous actions challenging the conviction he is presently serving, the District Court should bar him from filing any new action unless the petition is accompanied by a motion for leave to file. See Fed.R.Civ.P. 11(c); Gresham v. Miles, 2003 WL 22903009, No. 03-41094 (5th Cir. Dec. 9, 2003) (unpublished) (sanctioning petitioner who repeatedly sought relief under the savings clause of § 2255); Don Benny Anderson v. Fleming, 2003 WL 22255712, *2 (N.D.Tex. Sept. 29, 2003) (same). "Although the judicial system is generally accessible and open to all individuals, abuse of the process may result in actions to protect the courts' ability to effectively control the numerous matters filed therein." Kaminetzky v. Frost Nat. Bank of Houston, 881 F. Supp. 276, 277 (S.D. Tex. 1995).
RECOMMENDATION:
For the foregoing reasons the Magistrate Judge recommends that the District Court deny this habeas corpus petition pursuant to 28 U.S.C. § 2241.
It is further recommended that the District Court bar Petitioner from filing any future action challenging the conviction he is presently serving, unless accompanied by a motion for permission to file setting out good cause as to why the petition states a colorable basis for relief, hi the event Petitioner attempts to submit subsequent pleadings challenging the conviction he is presently serving without the required motion, the Court should order the Clerk of the Court to return the pleadings to Petitioner.
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.