Opinion
No. 3:01-CV-1226-R
February 8, 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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case : This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is federal inmate currently confined in Seagoville, Texas. He names Sam L. Pratt, Warden of the Seagoville facility; Kathleen Hawk Sawyer, Director of the Federal Bureau of Prisons; and John ID. Ashcroft, Attorney General, as respondents. The Court has not issued process in this case.
Statement of the Case: In 1994 in the United States District Court for the Northern District of Texas, Dallas Division, a jury found petitioner guilty of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. The Court sentenced him to 216 months imprisonment. The Fifth Circuit Court of Appeals affirmed his conviction. United States v. Castillo, 77 F.3d 1480 (5th Cir. 1996). On October 7, 1997, petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. On June 30, 1998, the Court denied the motion. In June 2001, petitioner filed the instant petition in which he seeks to collaterally attack his federal sentence under 28 U.S.C. § 2241.
II. Propriety of Petition under 28 U.S.C. § 2241
Petitioner specifically files this § 2241 action under the "savings clause" of 28 U.S.C. § 2255. That clause provides:
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.28 U.S.C. § 2255 (emphasis added).
Pursuant to this "savings clause," a federal court may entertain a § 2241 petition that challenges a federally imposed sentence when "the petitioner establishes the remedy under § 2255 is inadequate or ineffective." Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). Such an action under § 2241 must be pursued in the district of incarceration. See Reyes-Requena v. United States, 243 F.3d 893, 906 (5th Cir. 2001). "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." Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 476 (2001).
In this instance, petitioner bases this action on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000). He contends that under those cases, his indictment had to specify the weight of the drugs and the government had to prove the drug quantity beyond a reasonable doubt to the jury. He also contends that his sentence violates due process in that he was sentenced above the statutory maximum sentence. He further contends that the statute under which he was convicted is vague and ambiguous.
The claims based upon Jones and Apprendi are not properly raised in a habeas corpus proceeding pursuant to § 2241. The Fifth Circuit has set forth a stringent test that must be met to proceed under the savings clause. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). That test has two prongs — one based upon actual innocence and one based upon retroactivity. Id. at 903.
[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the [movant] 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. Under these circumstances, it can fairly be said, in the language of the savings clause, that "the remedy by [a successive § 2255] motion is inadequate or ineffective to test the legality of [the movant's] detention."Id. at 904 (footnote added). One does not necessarily satisfy the savings clause test, however, merely by meeting its two prongs. After enunciating that test, the Fifth Circuit specffically warned: "Of course, this test will operate in the context of our existing jurisprudence regarding what is not sufficient to obtain access to the savings clause." Id. (citing Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) as reflective of such jurisprudence).
As the facts recited in the Fifth Circuit's direct-appeal decision make clear, any claim that petitioner may have been convicted of a non-existent offense would be patently frivolous.
In Pack, the movant contended "that section 2255 relief [wa]s inadequate and ineffective because he [wa]s time-barred from bringing a second or successive section 2255 motion." 218 F.3d at 452. The court held that such contentions did not make § 2255 ineffective or inadequate. Id. Reyes-Requena does not eviscerate the jurisprudence reflected in Pack. See 243 F.3d at 904. It simply provides a remedy under § 2241, when the federal prisoner had no reasonable opportunity to correct a fundamental defect in his conviction.
In this instance, petitioner's claims are not based upon a retroactively applicable Supreme Court decision. The Fifth Circuit has specifically noted that the Supreme Court has not yet made Apprendi retroactively applicable on collateral review. See In re Tatum, 233 F.3d 857, 858 (5th Cir. 2000). The Supreme Court has also not made Jones retroactive on collateral review. See Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000) (holding that "it is clear that the Supreme Court has not made the [ Jones] rule retroactive to cases on collateral review"), cert. denied, 121 S.Ct. 1364, 149 L.Ed.2d 292 (2001). Although the Fifth Circuit has not yet considered whether Apprendi is retroactively applicable on collateral review, this District and others have concluded that it is not. See, e.g., United States v. McNairy, Nos. 3:99-CR-364-P, 3:01-CV-0355-P, 2001 WL 649684, at 3 (N.D. Tex. June 8, 2001) (citing cases holding that Apprendi is not retroactively applicable on collateral review). The Fifth Circuit, furthermore, has not made Jones retroactively applicable on collateral review. Until Jones and Apprendi are made retroactively applicable on collateral review, they cannot form the basis for finding § 2255 inadequate or ineffective. Consequently, petitioner is entitled to no habeas relief under § 2241.
The Fifth Circuit has, nevertheless, remanded a case "to the district court to reconsider its ruling denying . . . an amendment to his § 2255 motion based on futility in light of Apprendi." See United States v. Clark, 260 F.3d 382, 382 (5th Cir. 2001). Although Clark does not dictate any particular decision with respect to the retroactivity of Apprendi on collateral review, it does indicate that the Fifth Circuit has not yet decided the issue.
Although federal prisoners may file a second or successive motion for post-conviction relief under 28 U.S.C. § 2255, if it is based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," they must first obtain authorization from a three-judge panel of the "appropriate court of appeals" before filing such a second or successive motion in the district court. See 28 U.S.C. § 2244(b)(3)(B), 2255. The Supreme Court has not yet made Jones or Apprendi retroactively applicable on collateral review. See In re Tatum, 233 F.3d 857, 858 (5th Cir. 2000) ( Apprendi); Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000), cert. denied, 121 S.Ct. 1364, 149 L.Ed.2d 292 (2001) ( Jones). Nothing indicates, furthermore, that petitioner has obtained authorization for filing a second or successive motion. The Court thus declines to construe the instant petition as a motion to vacate under 28 U.S.C. § 2255.
Petitioner argues that the Supreme Court's remand of a case to the Seventh Circuit Court of Appeals "for further consideration in light of Apprendi", see Smith v. United States, 531 U.S. 941, 121 5. Ct. 336, 148 L.Ed.2d 270 (2000), may indicate an intent that Apprendi be applied retroactively. (Mem. Supp. of Pet. at 11-12.) In light of the precedent cited in the previous paragraph, the Court declines to speculate as to the intent behind the Supreme Court's order of remand. Petitioner himself concedes that, although the order of remand "may indicate the Supreme Court's intention that Apprendi be applied retroactively . . . it is not necessarily dispositive." ( Id. at 12.) On remand, furthermore, the Seventh Circuit found it "unnecessary to explore the subject of retroactivity." United States v. Smith, 241 F.3d 546, 549 (7th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 267 (2001). The Seventh Circuit thus did not interpret the order of remand as indicating an intent that Apprendi be applied retroactively.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the District Court DENY petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2241.