Opinion
Case No. 01-3338-RDR.
October 24, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner confined at USP-Leavenworth, Leavenworth, Kansas, proceeds pro se.
PROCEDURAL HISTORY
On March 3, 1995, petitioner was convicted in the United States District Court for the Eastern District of Virginia of conspiracy to commit arson in violation of 18 U.S.C. § 371; arson in violation of 18 U.S.C. § 844(f); and using a destructive device to commit a crime in violation of 18 U.S.C. § 924(c)(1). Petitioner was sentenced to ten years imprisonment on counts one and two and to thirty years imprisonment on count three.
Petitioner appealed his conviction, which was affirmed by the Fourth Circuit. United States v. Davis, 98 F.3d 141 (4th Cir. 1996). Petitioner filed a Motion to Vacate Sentencing pursuant to 28 U.S.C. § 2255, and the motion was denied. Petitioner appealed. The appeal was dismissed and a certificate of appealability was denied. United States v. Davis, No. 01-6486, 2001 WL 640451, at *1 (4th Cir. June 11, 2001).
Petitioner filed his § 2241 petition in this action on August 14, 2001, raising three issues: (1) lack of subject matter jurisdiction; (2) denial of due process as a result of trial court's failure to give downward departure; and (3) denial of due process in that government did not meet its burden of proof when petitioner's sentence was enhanced under § 924(c) without proof that he knowingly possessed the fire bomb that was used to set the fire.
DISCUSSION Petitioner is attacking the validity of his conviction. Section 2241, however, is generally reserved to challenge the execution of a sentence rather than its validity. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A petition under § 2241 "is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255." Id. Section 2241 review of petitioner's federal conviction is precluded unless petitioner demonstrates the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255.
Having reviewed the record, the court finds petitioner has failed to show that § 2255 is inadequate or ineffective. Petitioner claims the one-year time limit for filing another § 2255 motion precludes him from obtaining adequate or effective relief under § 2255. Neither the failure to obtain relief under § 2255 nor the fact that relief under § 2255 may now be barred by the gatekeeping requirements of AEDPA, renders the remedy of § 2255 inadequate or ineffective. See Williams v. U.S., 323 F.2d 672, 673 (10th Cir. 1963) and Carvalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).
Petitioner also relies upon the recent Supreme Court decision of Jones v. United States, 529 U.S. 848 (2000). Petitioner asserts that 18 U.S.C. § 844(f) was erroneously applied since the townhouse set on fire was privately owned and, thus, was not property used in interstate or foreign commerce.
In Jones, the Court determined "that § 844(i) does not cover the arson of an owner-occupied dwelling." Jones v. U.S., 529 U.S. 848, 859 (2000). In addition, the court found that § 844(i) only covers property "currently used in commerce or in an activity affecting commerce." Id. Petitioner's case is readily distinguishable from Jones. While the house in Jones was privately owned, the United States Department of Housing and Urban Development (HUD) and Virginia Housing Development Authority (VHDA) had an interest in the house burned in petitioner's case. HUD gave money to VHDA to assist low-income families with house payments, and VHDA, in turn, gave money to the owner of the house burned to subsidize her house payments. The district court determined that the VHDA "used" the house in accomplishing its statutory function.
In any event, petitioner's reliance upon Jones does not alter the principles which bar § 2241 relief. Absent a showing that Jones should be retroactively applied to cases on collateral review and that petitioner is actually innocent, § 2255 relief will not be considered inadequate or ineffective. Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir. 2001).
Because petitioner has failed to show § 2255 to be inadequate or ineffective, he is not entitled to proceed under § 2241.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed and all relief denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner. A copy of both this Report and Recommendation and the Petition shall also be mailed to the Office of the United States Attorney in Topeka, Kansas.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.