Opinion
Civil Action No. 4:04-CV-909-Y.
April 11, 2005
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Frank Fountain Jr. under 28 U.S.C. § 2241, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on March 9, 2005; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on April 6, 2005.
The Court, after de novo review, concludes that Fountain's objections must be overruled, and that the petition for writ of habeas corpus under 28 U.S.C. § 2241 should be dismissed for lack of jurisdiction, for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
In this action, petitioner Fountain challenges the imposition of a sentence based upon enhancements and conduct considered by the sentencing court, without the facts in support having been proven to a jury beyond a reasonable doubt. His claims are based upon the Supreme Court's decisions in United States v. Booker, 125 S.Ct. 738 (2005), Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Fountain was convicted in the United States District Court for the Northern District of Alabama on his plea of guilty to several counts of wire fraud in violation of 18 U.S.C. § 1343; several counts of mail fraud in violation of 18 U.S.C. § 1341; and for concealing assets in violation of 18 U.S.C. § 152(3). (Cause number 2:00-CR-328-IPJ-TMP-1 — Judgment filed May 1, 2001). Fountain sought relief under 28 U.S.C. § 2255, which was denied in an order filed on May 28, 2003. Fountain's appeal of the denial of the § 2255 motion was affirmed by the Court of Appeals for the Eleventh Circuit. (Feb. 11, 2005, Response.)
The Court takes judicial notice of the docket sheet records of the United States District Court for the Northern District of Alabama in United States v. Fountain, No. 2:00-CR-328-IPJ-TMP-1.
The Court of Appeals for the Fifth Circuit has determined that, before a petitioner may pursue relief through 28 U.S.C. § 2241 under the language of the 28 U.S.C. § 2255 savings clause, he must show that:
28 U.S.C.A. § 2255(West Supp. 2004) ("An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by [2255 motion] . . . shall not be entertained . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.")
(1) his claim is based on a retroactively applicable Supreme Court decision; (2) the Supreme Court decision establishes that he was "actually innocent" of the charges against him because the decision decriminalized the conduct for which he was convicted; and (3) his claim would have been foreclosed by existing circuit precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition.
Christopher v. Miles, 342 F.3d 378, 382 (5th Cir.), cert. den'd, Christopher v. Sisneros, 540 U.S. 1085 (2003), citing Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001) and Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Fountain has not made this showing. Most importantly, he has not shown that the Booker/Blakely/Apprendi line of cases suggest the invalidity of the substantive offenses for which he was convicted, which is necessary to show actual innocence. Second, Fountain has not shown that such decisions are retroactive, and the weight of authority holds they are not. Where the petitioner's claims fail to satisfy the § 2255 savings clause, a district court should dismiss the petition under 28 U.S.C. § 2241 for lack of jurisdiction.
See generally King v. Jeter, No. 4:04-CV-600-D, 2005 WL 195446, at *1 (N.D.Tex. Jan. 27, 2005) ("Booker, like Blakely, does not implicate petitioner's conviction for a substantive offense"); Wesson v. U.S. Penitentiary Beaumont, Texas, 305 F.3d 343, 346 (5th Cir. 2002) (noting that for a § 2241 petitioner raising an Apprendi claim to satisfy the savings clause, he had to show that the retroactively applicable Supreme Court decision "establishes that he may have been convicted of a nonexistent offense.")
In Booker, the Court expressly limited both its Sixth Amendment holding and the remedial interpretation "to all cases on direct review." Booker, 125 S.Ct. at 769. The circuit courts that have considered the question have determined that the Booker analysis is not retroactive to collateral cases. See Guzman v. United States, No. 03-2446-PR, 2005 WL 803214, at *2-4 (2nd Cir. April 8, 2005); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005); Varela v. United States, 400 F.3d 864, 866-868 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005). With regard to whether the analysis in Blakely applies retroactively, the Eleventh Circuit issued an instructive opinion:
[T]he same day the Supreme Court decided Blakely, the Court also issued its decision in Schiro v. Summerlin, 124 S.Ct. 2519, 2004 WL 1402732 (U.S. June 24, 2004), holding that Ring v. Arizona, 536 U.S. 584 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review. Schiro, 124 S.Ct. 2519, 2 — 4 WL 1402732, at **4-7; see also Blakely, 2004 WL 1402697, at *16 (O'Connor, J. dissenting) (recognizing the Court's holding in Summerlin "that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review").In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004). The Tenth Circuit also recently determined that the Blakely decision was not retroactive. See United States v. Price, 400 F.3d 844, 845-49 (10th Cir. 2005). The Fifth Circuit has held that Apprendi is not retroactive. See United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002).
Christopher, 342 F.3d at 379, 385 (noting that since petitioner could not satisfy the savings clause, district court's order denying petition was vacated, and case remanded with order to dismiss for lack of jurisdiction).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED, as modified herein.
It is further ORDERED that Frank Fountain Jr.'s petition for writ of habeas corpus under 28 U.S.C. § 2241 be, and is hereby, DISMISSED for lack of jurisdiction.
FINAL JUDGMENT
Pursuant to an order issued this same day, and Federal Rule of Civil Procedure 58,It is hereby ORDERED, ADJUDGED, and DECREED that Frank Fountain Jr.'s petition for writ of habeas corpus under 28 U.S.C. § 2241 be, and is hereby, DISMISSED for lack of jurisdiction.
It is further ORDERED that all costs of court are taxed against the party that incurred them.