Opinion
Civil Action No. 4:02-CV-341-R
April 22, 2002
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, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
Franceschim Raul Caminero, Federal Register No. 18846-077 has filed a petition for writ of habeas corpus by a person in federal custody under 28 U.S.C. § 2241.
B. PARTIES
Petitioner Franceschim Raul Caminero is currently confined at FMC-Fort Worth, in Fort Worth, Texas. Caminero named L.E. Fleming, the warden at FMC-Fort Worth as the respondent in this case. No process has been issued to Respondent in this case.
C. PROCEDURAL HISTORY
Franceschim Raul Caminero purports to challenge the 1990 judgment of conviction and 292 month sentence of imprisonment imposed upon him in this the Northern District of Texas in cause number 3:89-CR-080-R for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and for use of a communication facility in the furtherance of a conspiracy to distribute cocaine in violation of 21 U.S.C. § 843. His appeal to the Fifth Circuit was dismissed for want of jurisdiction. Caminero then filed a motion under 28 U.S.C. § 2255. The Honorable Jerry Buchmeyer denied this motion in an order entered in January 1994. Caminero appealed, but the appeal was dismissed for want of prosecution. Caminero then filed a second motion under 28 U.S.C. § 2255, and that motion was dismissed with prejudice in an order entered in April 1998. Caminero later filed a motion pursuant to the "Vienna Convention Treaty that Resulted in his Current Illegal Incarceration," and that motion was construed as a successive motion under 28 U.S.C. § 2255, and dismissed in an order entered on September 24, 1999.
The court takes judicial notice of the docket sheet and court records in United States v. Caminero, 3:89-CR-080-R. The first motion under 28 U.S.C. § 2255 was assigned civil number 3:94-CV-007-R; the second motion was assigned civil number 3:94-CV-979-R.
See Id.
D. LEGAL ANALYSIS
In the instant case, Caminero has filed an instrument entitled "Petition for Writ of Habeas Corpus by a Person in Federal Custody Under 28 U.S.C. § 2241." This Court has now reviewed the petition under 28 U.S.C. § 2241 pursuant to 28 U.S.C. § 2243, and it appears that Petitioner is not entitled to relief. From the face of the petition, it is apparent the person detained has filed a challenge to alleged errors that occurred during or before sentencing, and as such, this petition for writ of habeas corpus under § 2241 should be dismissed with prejudice.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (West 1994) (emphasis added).
By this action, Caminero claims that his conviction and sentence should be vacated, and that he should be resentenced based upon a quantity of four ounces of cocaine rather than the 70 kilograms attributed to him. (Pet. at pages 6-7.) A motion filed under 28 U.S.C. § 2255, not § 2241, is the proper method of challenging errors that occurred during or before sentencing.
See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); see also Ojo v. Irriz-nigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997, citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) ("Attacks on the underlying conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241(c)"); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) ("appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing").
Caminero acknowledges that he filed a previous motion under 28 U.S.C. § 2255. He alleges, however, that he is now seeking habeas corpus relief under § 2255's "savings clause." (Pet. § 11(A).) Section 28 U.S.C. § 2255 provides that a prisoner may file a writ of habeas corpus if the remedy provided by a § 2255 motion is "inadequate or ineffective to test the legality of his detention." Caminero's claim that the "savings clause" entitles him to pursue habeas corpus relief under § 2241 should be rejected. As noted above, Caminero already sought and was denied relief under § 2255. The Fifth Circuit has expressly held that a "prior unsuccessful § 2255 motion, or the inability to meet the AEDPA's second or successive requirement, does not make § 2255 inadequate or ineffective." Thus, the fact that Caminero has already sought relief under 28 U.S.C. § 2255, without more, is not sufficient § 2255 savings clause inadequacy to justify allowing the filing of a petition under 28 U.S.C. § 2241. This petition under § 2241 should be summarily dismissed.
28 U.S.C.A. § 2255 paragraph 5 (West Supp. 2001).
See generally Jeffers v. Chandler, 253 F.3d 827, 830 (5th cir.) ("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"), cert. den'd, 122 S.Ct. 476 (2001)
See Tolliver, 211 F.3d at 878.
See Id.; see also Jeffers, 253 F.3d at 830 (setting forth the two-part "actual innocence" factors that must be satisfied for a petitioner to file a § 2241 petition in connection with § 2255's savings clause); see generally United States v. Peterman, 249 F.3d 458, 461-62 (6th Cir.) ("[n]o circuit court has to date permitted a post-AEDPA petitioner who was not effectively making a claim of `actual innocence' to utilize § 2241 (via § 2255's `savings clause') as a way of circumventing § 2255's restrictions on the filing of second or successive habeas petitions") (quoting Charles v. Chandler, 180 F.3d 753, 757 (6th Cir. 1999)), cert. den'd, 122 S.Ct. 493 (2001).
As this Court presided over Caminero's conviction, it has jurisdiction to construe the instant action as a motion under 28 U.S.C. § 2255. See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000) (a section 2241 petition attacking the validity of a federal sentence must either be dismissed or construed as a section 2255 motion); see also Ojo, 106 F.3d at 683 (noting that although a § 2241 petition attacking matters within the province of § 2255 could be construed as a § 2255 motion, "a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that") citing Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987). Such construction is not appropriate here, however, because Caminero expressly seeks to proceed under 28 U.S.C. § 2241. In the alternative, even if the Court were to construe this action as a motion seeking relief under 28 U.S.C. § 2255, it would have to dismiss on the basis that Caminero has failed to obtain circuit court authorization to file a successive motion under 28 U.S.C. § 2255. See 28 U.S.C. § 2255 paragraph 8.
RECOMMENDATION
It is recommended that petitioner Franceschim Raul Caminero's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 be DISMISSED WITH PREJUDICE to refiling under 28 U.S.C. § 2241.NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSENQUENCES 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 to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until May 13, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until May 13, 2002 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations.
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 is hereby, returned to the docket of the United States District Judge.