Opinion
No. 3-04-CV-1465-H.
July 15, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gene Irving Garland, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be construed as a motion to correct, vacate, or set aside sentence and dismissed as successive.
I.
Petitioner was charged by indictment with 62 counts of mail fraud, 57 counts of money laundering, and one count of securities fraud. He was convicted on all counts and sentenced to a total of 276 months confinement. The trial court also ordered petitioner to make restitution in the amount of $1,705,963.70 and pay an $11,850 mandatory special assessment. His conviction and sentence were affirmed on direct appeal. United States v. Garland, 44 Fed.Appx. 651, 2002 WL 1396898 (5th Cir. Jun. 3, 2002) (Table), cert. denied, 123 S.Ct. 403 (2002). Petitioner also filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255. That motion was denied on the merits. United States v. Garland, 2003 WL 23109575 (N.D. Tex. Dec. 22, 2003), appeal pending, No. 04-10039 (5th Cir.).
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241. In his sole ground for relief, petitioner contends that his sentence was enhanced by factors not presented to the jury as required by Blakely v. Washington, 124 S.Ct. 2531 (2004). Process has been withheld pending a preliminary screening of the habeas petition.
In Blakely, a majority of the Supreme Court held that an enhanced sentence imposed by a judge under the Washington Sentencing Reform Act, which was based on facts neither admitted by the defendant nor found by a jury, violated the Sixth Amendment to the United States Constitution. Blakely, 124 S.Ct. at 2538. The Fifth Circuit has recently held that Blakely does not extend to the federal sentencing guidelines. United States v. Pineiro, 2004 WL 1543170 at *9 (5th Cir. Jul. 12, 2004).
II.
As a threshold matter, the court must determine whether these claims are properly raised in a section 2241 habeas petition. A collateral attack on a federal criminal conviction is generally limited to a motion to correct, vacate or set aside sentence under 28 U.S.C. § 2255. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). An application for writ of habeas corpus brought under 28 U.S.C. § 2241 is properly construed as a section 2255 motion if it seeks relief based on errors that occurred at trial or sentencing. Id. at 877-88. However, habeas relief may be appropriate when the remedy provided under section 2255 is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2000), cert. denied, 122 S.Ct. 476 (2001). A petitioner must satisfy two factors to show inadequacy. First, the claim must be "based on a retroactively applicable Supreme Court decision which establishes that petitioner may have been convicted of a nonexistent offense." Id. at 830, quoting Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Second, the claim must have been "foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion." Id.
Although petitioner's Blakely argument was foreclosed by Fifth Circuit precedent at the time of his trial, appeal, and first section 2255 motion, such a claim does not implicate his conviction for a substantive offense. Nor is it clear that Blakely, even if made applicable to the federal sentencing guidelines, is retroactive. See Wesson v. U.S. Penitentiary Beaumont, Tx., 305 F.3d 343, 347-48 (5th Cir. 2002) (holding that Apprendi and Richardson claims fail to satisfy first prong of Reyes-Requena test). The fact that petitioner may be precluded from raising this claim in a second or successive section 2255 motion does not make that remedy "inadequate or ineffective." See Jeffers, 253 F.3d at 830. Under these circumstances, petitioner is precluded from challenging his conviction under 28 U.S.C. § 2241.
III.
The Antiterrorism and Effective Death Penalty Act of 1996 limits the circumstances under which a federal prisoner may file a second or successive motion for post-conviction relief. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). A defendant must show that the successive motion is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255. This determination must be made by a three-judge panel of the court of appeals before defendant can file another motion in district court. Id. §§ 2241 2255.
The Fifth Circuit has not issued an order authorizing the district court to consider this successive motion. Petitioner must obtain such an order before another motion for post-conviction relief is filed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be construed as a motion to correct, vacate, or set aside sentence and dismissed pending authorization from the court of appeals to file a successive motion in district court.