Opinion
Case No. 01-3266-RDR.
September 18, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner confined at USP-Leavenworth, Leavenworth, Kansas, proceeds pro se.
PROCEDURAL HISTORY
On February 24, 1995, petitioner was convicted of felon in possession of a firearm in the United States District Court for the Western District of Missouri. His conviction was affirmed. United States v. Maddix, 96 F.3d 311 (8th Cir. 1996). On July 22, 1999, petitioner filed a motion pursuant to Fed.R.Crim.P. 12(b)(2), which motion, although initially dismissed, was allowed to be refiled as a motion pursuant to 28 U.S.C. § 2255. The motion was denied as was a certificate of appealability. Petitioner next sought permission to file a successive habeas petition which was denied by the Eighth Circuit Court of Appeals.
In this action filed pursuant to 28 U.S.C. § 2241, petitioner challenges his conviction by alleging (1) the trial court lacked subject matter jurisdiction because the government relied solely upon the commerce clause to establish jurisdiction and failed to prove complete subject matter jurisdiction pursuant to 40 U.S.C. § 255 and (2) his indictment and sentence are defective under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the indictment did not allege all essential elements to support a conviction of 18 U.S.C. § 924(e)(1)(i.e., the indictment did not specifically allege his prior convictions involved crimes of violence).
Intertwined in the argument that the court was without subject matter jurisdiction is petitioner's claim that his appellate counsel was ineffective in failing to raise this jurisdictional argument on appeal.
DISCUSSION
Petitioner is attacking the validity of his conviction. Section 2241, however, is generally reserved to challenge the execution of a sentence rather than its validity. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A petition under § 2241 "is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255." Id. Section 2241 review of petitioner's federal conviction is precluded unless petitioner demonstrates the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255.
Petitioner argues he meets the requirements for presenting a successive § 2255 motion because he was previously unaware of the alleged jurisdictional defect based upon 40 U.S.C. § 255 and, as such, it is newly discovered evidence proving his actual innocence. Second, petitioner argues his Apprendi claim involves a new rule of constitutional law which should be retroactively applied. The question of whether petitioner meets the requirements for filing a successive § 2255 motion must be presented to the Eighth Circuit Court of Appeals.
It would appear these same arguments would be rejected by the Tenth Circuit. See United States v. Dorris, 236 F.3d 582 (10th Cir. 2000) (finding enactment of 18 U.S.C. § 922(g)(1) within Congressional power to regulate under the Commerce Clause) and Daniels v. United States, 254 F.3d 1180 (10th Cir. 2001 (finding Apprendi cannot support a successive § 2255 motion because the Supreme Court has not made the rule announced in Apprendi retroactive to cases on collateral review).
Alternatively, petitioner argues the Supreme Court has interpreted the statute under which he was convicted in such a manner that petitioner's conviction can no longer stand. Petitioner's argument is rejected. Neither Apprendi nor any other Supreme Court decision has recently construed the felon in possession statutes, 18 U.S.C. § 922(g)(1) and 924(e)(1), in such a way as to render the conduct underlying petitioner's conviction no longer criminal. Thus, petitioner's circumstances are distinct from those cases which have allowed a § 2241 remedy where a criminal statute is subsequently construed in such a way as to render the conduct supporting the conviction no longer criminal and where § 2255 relief is unavailable. See United States v. Brooks, 230 F.3d 643, 648 (3rd Cir. 2000) (reviewing circuit cases granting recourse to § 2241 in such limited circumstances), rehearing on separate issue, 245 F.3d 291 (3rd Cir. 2001) (en banc).
The fact that relief under § 2255 may be barred by the gatekeeping requirements of AEDPA does not render the remedy of § 2255 inadequate or ineffective. Carvalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999). Finding petitioner is challenging the validity of his conviction and that the record in this case does not demonstrate § 2255 relief is inadequate or ineffective, the petition should be denied.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
IT IS ORDERED that petitioner's application to proceed in forma pauperis (Doc. 2) is denied as mooted by petitioner's payment of the $5.00 filing fee in this habeas action.
A copy of this Report and Recommendation shall be mailed to petitioner. A copy of this Report and Recommendation shall also be mailed to the Office of the United States Attorney in Topeka, Kansas.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.