Opinion
Civil Action No. 4:04-CV-600-D.
January 11, 2005.
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:
I. 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 Willie Frank King, Reg. No. 29510-077, is a federal prisoner incarcerated in FMC-Fort Worth in Fort Worth, Texas.
Respondent Cole Jeter is Warden of FMC-Fort Worth.
C. PROCEDURAL HISTORY
In the Northern District of Texas, Dallas Division, Case No. 3:97-CR-83, King was charged with various drug-related offenses. See CM/ECF, Criminal Docket for Case No. 3:03-CR-0083-1. On June 12, 1997, a jury found King guilty on three counts, and, on August 29, 1997, the district court sentenced him to 328 months' imprisonment on counts 1 and 3 and 48 months' imprisonment on count 2. Id., docket entry for June 12, 1997. The Fifth Circuit Court of Appeals affirmed King's convictions and sentences in an unpublished opinion on October 13, 1998. (Resp't Appendix to Motion to Dismiss at 1-4.) King's petition for writ of certiorari was denied on March 22, 1999. (Resp't Motion to Dismiss at 2.) Thereafter, King filed two motions to vacate under 28 U.S.C. § 2255 in the Dallas Division. The first was denied on the merits on January 18, 2001, and the second was dismissed as successive on July 28, 2003. See CM/ECF, docket entries for January 18, 2001 July 28, 2003, respectively. In each instance, King appealed the district court's judgment to no avail. See id, at docket entries for January 10, 2002 February 23, 2004, respectively. King filed his petition under § 2241 in this division, where he is currently serving his sentences. The government has moved that the petition be dismissed.D. DISCUSSION
By the instant action, King challenges his convictions and/or sentences on the basis of the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Specifically, he raises the following issues: (1) whether his Blakely claim can be raised via a § 2241 petition for writ of habeas corpus; (2) whether he should be resentenced under Blakely; and, (3) whether his indictment should be dismissed in light of Blakely. (Petition at 4 Pet'r Memorandum in Support 2, 7, 17.)
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). However, § 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. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).
King claims that he is entitled to seek § 2241 relief under the § 2255 savings clause based on the subsequent change in the law as articulated in Blakely. (Pet'r Mem. in Support at 2.) Although Blakely had not yet been decided at the time of King's trial, appeal, and prior § 2255 motions, such a claim does not implicate his conviction for a substantive offense. Moreover, in light of relevant Fifth Circuit case law, by which this court is bound, Blakely is inapplicable to the federal sentencing guidelines. See United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), petition for cert. filed, No. 04-5263 (July 14, 2004). Even if made applicable, it is unclear whether Blakely will be made retroactive. See Blakely, 124 S. Ct. at 2537-41; In re Dean, 375 F.3d 1287-1290 (11th Cir. 2004).
II. RECOMMENDATION
Because King has not made the showing required to invoke the savings clause of § 2255 as to the claims presented in this habeas corpus proceeding, it is recommended that the government's motion to dismiss King's petition for writ of habeas corpus under § 2241 be GRANTED to the extent the petition should be denied.III. 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 in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 1, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 1, 2005, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections 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.