Summary
providing "[p]etitioner has not cited any authority, nor has this court found any case law, which holds that mere delay in the disposition of a § 2255 motion constitutes a basis for finding that a federal prisoner's § 2255 remedy is ineffective or unavailable."
Summary of this case from Boden v. ChandlerOpinion
3:03-CV-2698-L
February 5, 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 District 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 Medical Center in Fort Worth, Texas. Respondent is Warden L. E. Fleming. The court has not issued process in this case. Statement of the Case: Petitioner was convicted of conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and 3551 in the United States District Court for the Eastern District of New York, Cause No. 1:98cr696. On May 8, 2000, punishment was assessed at sixty months imprisonment, a three-year term of supervised release, and restitution totaling $391,102. The Second Circuit Court of Appeals affirmed the judgment of conviction on January 18, 2001.
Since Petitioner is incarcerated in the Northern District of Texas, this court has the authority to determine 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)).
On November 26, 2001, Petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See Fredrick v. United States of America. l:01cv7826-SJ (E.D.N.Y.). That action is currently pending in the Eastern District of New York.
The docket sheet in No. 1:01cv7826-SJ reflects Petitioner's last name as "Fredrick" instead of "Frederick." Petitioner filed a second § 2255 motion on March 7, 2003, which was consolidated with the earlier motion in No. 1:01cv7826-SJ. See Frederick v. United States. 1:03cv1235 (E.D. N.Y.).
In this habeas action, Petitioner seeks to attack the legality of his conviction. Because more than two years have passed since the initial filing of his § 2255 motion, he alleges that he is entitled to challenge his conviction under 28 U.S.C. § 2241, the general habeas corpus statute.
Findings and Conclusions: "Section 2255 provides the primary means of collaterally attacking a federal conviction and sentence."Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 200n: Cox v. Warden. Fed. Detention Center. 911 F.2d 1111. 1113 (5th Cir. 1990). Relief under this section is warranted for errors that occurred at trial or sentencing. Cox, 911 F.2d at 1113. A section 2255 motion must be filed in the sentencing court. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
By contrast a § 2241 petition permits challenges to the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. Id. at 451. 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.
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).
The claims asserted in the instant petition relate to the conduct of Petitioner's trial counsel, who is located in the State of New York, and the actions of the New York federal court. Such claims are cognizable in a § 2255 motion, which must be filed in the sentencing court.See Pack. 218 F.3d at 451. If an evidentiary hearing were required it would be impractical, if not impossible, to conduct the same in this district. Further, it would be improvident if not impermissible for a court in this district to address alleged errors committed by a United States District Judge in the Eastern District of New York.
Insofar as Petitioner alleges that § 2255 relief is ineffective and/or unavailable due to the tremendous delays in ruling on his § 2255 motion in the Eastern District of New York, his claim fares no better. Petitioner has not cited any authority, nor has this court found any case law, which holds that mere delay in the disposition of a § 2255 motion constitutes a basis for finding that a federal prisoner's § 2255 remedy is ineffective or unavailable. Relief, if any, should be sought from the Second Circuit Court of Appeals. Consequently, Petitioner is not entitled to habeas relief under § 2241.
Petitioner has sought mandamus relief from the Second Circuit on three occasions. On each occasion relief was denied, most recently on November 24, 2003. If the District Court in the Eastern District of New York has not yet ruled on his pending § 2255 motion, Petitioner may again seek relief from the Second Circuit provided his request is not frivolous. See In re Herman E. Frederick. No. 03-3097 (2nd Cir. Nov. 24, 2003) (warning Petitioner that if he files any further frivolous mandamus petitions, he maybe sanctioned).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied and dismissed.
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.