Opinion
Civil Action No. 4:02-CV-704-Y
November 7, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Gary William Holt, Reg. No. 33069-138, is a federal prisoner incarcerated in the Federal Medical Center, Fort Worth, Texas.
Respondent L.E. Fleming is Warden of the Federal Medical Center, Fort Worth, Texas.
C. PROCEDURAL HISTORY
In the instant proceeding, Holt "challenges the validity of the federal statutes/codes under which he was convicted" in Cause No. 4:96-CR-025-HLM in the Northern District of Georgia. (Pet.'r Mem. in Support at 3.) Apparently, he was convicted of (1) providing a false or fictitious statement to a federally licensed firearms dealer in the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6), (2) being a felon in receipt of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e), and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924. ( Id.) Holt filed a 28 U.S.C. § 2255 Motion in the Northern District of Georgia, Rome Division, which was denied on October 2, 2000. (Resp't Mtn. to Dismiss at 2.) Holt filed the instant petition under § 2241 in this district, where he is currently serving his sentence. The government has moved that the petition be dismissed as a successive § 2255.
D. DISCUSSION
By the instant action, Holt challenges his felony convictions on the basis that the federal statutes under which he was convicted "are a part of an Act of Congress that constructively and effectively amends provision of the Constitution, was a deliberate by-pass of the amendatory process commanded in Article V of the Constitution, and, therefore, is null and void." (Pet'r Mem. in Support at 3.)
Holt's attack on his conviction is not cognizable in a petition for writ of habeas corpus brought pursuant to § 2241. Typically, § 2241 is used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). Section 2255, on the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Because Holt's claim involves a collateral attack on his conviction(s), it must be asserted in a § 2255 motion, and the only court with jurisdiction to determine such a motion is the convicting court, i.e., the Rome Division of the Northern District of Georgia. Thus, Holt may not assert the claim raised in the instant case in a petition under § 2241, and, as such, the instant petition under § 2241 should be dismissed with prejudice.
The court recognizes that § 2241 may be used by a federal prisoner to challenge the legality of his conviction or sentence if he can satisfy the mandates of the so-called § 2255 "savings clause." See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). Section 2255 provides that "a prisoner may file a writ of habeas corpus if a remedy by § 2255 motion is inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255. To establish that a § 2255 motion is inadequate or ineffective, the prisoner must show that: (1) his claim is based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense, and (2) his claim was foreclosed by circuit law at the time when the claim should have been raised in his trial, appeal, or first § 2255 motion. Reyes-Requena, 243 F.3d at 904. The petitioner bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, 122 S.Ct. 476 (2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). Holt has not met his burden under this standard.
In his reply, Holt acknowledges that "at first glance" it would appear that he cannot meet the stringent requirements to invoke the § 2255 savings clause. He urges, however, that "other matters must be factored in before the door is closed," such as the jurisdictional nature of his claim, the novelty of his argument, and his actual innocence. (Pet'r Traverse at 12.) The court does not find Holt's argument persuasive. Holt was able to, and did, challenge his convictions in a § 2255 motion. Nothing in § 2255 prevented him from questioning the legality of his convictions upon the ground now raised at the time he filed his earlier motion to vacate. The § 2255 savings clause does not exist to free a prisoner of the effects of his failure to raise an available claim earlier. See Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999).
Halt's present effort to challenge his convictions does not fit within the savings clause of § 2255. He has not demonstrated that, based on a retroactively applicable Supreme Court decision, he was convicted of a nonexistent offense, or that his claim was foreclosed by circuit law at the time he filed his § 2255 motion. Thus, Holt has failed to make the requisite showing to invoke the § 2255 savings clause as to his claim presented in this habeas corpus proceeding.
RECOMMENDATION
It is recommended that the government's motion to dismiss be GRANTED, and this petition for writ of habeas corpus under § 2241 be dismissed with prejudice.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until December 2, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until December 2, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that ifobjections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.