Opinion
No. 3:04-CV-1314-D.
October 13, 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 conspiracy and distribution of and/or possession with intent to distribute of a controlled substance in the United States District Court for the Northern District of Oklahoma in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. United States v. Chaney, 4:97-CR-053-C(07) (N.D. OK.). Punishment was assessed at 292 months imprisonment on each of the two counts to run concurrently, a five-year term of supervised release, a $3,000 fine and restitution in the amount of $1,000. On March 1, 1999, the Tenth Circuit Court of Appeals affirmed Petitioner's conviction, and on May 17, 1999, the Supreme Court denied his petition for writ of certiorari.
The criminal docket reflects Petitioner's full name as Sullivan Ross Chaney.
In this action, Petitioner contends that his "alleged crime . . . is not a federal crime," and thus, "the federal government and FCI Seagoville lack subject matter of [sic] jurisdiction to hold . . . [his] person under Article III of U.S. Constitution." (Petition (Pet.) at 5). He seeks "immediate release from the illeagal [sic] custody in which he is being held." ("Writ of Habeas" at 1, attached to Pet.). 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.
In support of his § 2241 petition, Petitioner relies on several pleadings including a 45-page motion to dismiss his criminal case, No. 4:97cr053-C(07). (See Mot. to Dism. attached to his Pet.). It appears Petitioner did not file this motion in his criminal case. The motion to dismiss neither bears a file stamp from the Northern District of Oklahoma, nor does the criminal docket sheet reflect the filing of the same.
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." He argues that § 2255 "is used to attack a prisoner[']s sentence," and that § 2241, as a result, "can be used to attack the conviction of the fedendant [sic]." (See page titled " 28 U.S.C. § 2255 Inadequate and Ineffective" attached to Pet.). Since he has not raised an issue challenging his sentence, Petitioner concludes that he is not "procedurally barred from attacking . . . his conviction" in this § 2241 proceeding. (Id.). While it is true that Petitioner has not raised a sentencing issue, it is equally true that his jurisdictional claim is an issue cognizable under § 2255. That section specifically permits a prisoner to bring a motion to vacate, set aside or correct his sentence upon several grounds, including the claim "that the court was without jurisdiction to impose such sentence."
A search of the U.S. Party Case Index and a review of the criminal docket sheet confirms Petitioner never filed a § 2255 motion. The one-year limitation period, set out in § 2255 as amended on April 24, 1996, may now bar him from filing an untimely § 2255 motion. This fact alone, however, does not render the remedy provided by that section inadequate or ineffective. ineffective. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (citing Caravalho 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)).
Accordingly, Petitioner is not entitled to relief under § 2241 and his petition should be denied. RECOMMENDATION:
In light of the untimeliness issue, the District Court need not exercise its discretion and construe the § 2241 petition as a § 2255 motion, and transfer the same to the convicting court.
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 Sullivan Ross Chaney, #08019-062, BOP, FCI Seagoville, P.O. Box 9000, Seagoville, Texas 75159.