Opinion
Civil Action No. 4:02-CV-003-G
April 11, 2002
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 Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
Harold Martin, Federal Register No. 24920-077 has filed a petition for writ of habeas corpus by a person in federal custody under 28 U.S.C. § 2241.
B. PARTIES
Petitioner Harold Martin is currently confined at FMC-Fort Worth, in Fort Worth, Texas. Martin named L.E. Fleming, the warden at FMC-Fort Worth act the respondent in this case. No process has been issued to Respondent in this case.
C. PROCEDURAL HISTORY
Harold Martin purports to challenge the 1994 judgment of conviction, 121 month sentence of imprisonment, and order of restitution imposed upon him in this the Northern District of Texas Court in cause number 3:93-CR-316-G for various fraud-related crimes, including violations of 18 U.S.C. § 371, 18 U.S.C. § 1014, 18 U.S.C. § 1344, 18 U.S.C. § 513, and 18 U.S.C. § 1956. Martin's conviction was affirmed on direct appeal except that the restitution order was vacated and remanded for resentencing. Martin was resentenced such that the terms of re-payment of the restitution were modified to a specific monthly amount as recorded in an Amended Judgment entered on November 1, 1996. Martin then filed a motion under 28 U.S.C. § 2255. The Honorable A. Joe Fish denied three of the claims in an order entered in August 1998, and then, after the magistrate judge held a hearing and issued a recommendation as to the fourth claim, the District Court adopted the recommendation as to denial of Martin's remaining claim for relief under 2255 in an order and judgment entered on June 11, 1999. The court of appeals denied Martin's request for a certificate of appealability.
The Court takes judicial notice of the docket sheet and court records in United States v. Martin, 3:93-CR-3016-G. The motion under 28 U.S.C. § 2255 was assigned civil number 3:97-CV-963-G.
The Court of appeals assigned cause number 99-10799 to Martin's application for certificate of appealability.
D. LEGAL ANALYSIS
In the instant case, Martin has filed an instrument entitled "Petition for Writ of Habeas Corpus by a Person in Federal Custody Under 28 U.S.C. § 2241," along with a seprately filed "Motion to Clarify Petitioner's Original Petition," which is hereby construed as a Supplement to the petition under 28 U.S.C. § 2241. This Court has now reviewed the petition under 28 U.S.C. § 2241 as supplemented pursuant to 28 U.S.C. § 2243, and it appears that Petitioner is not entitled to relief. From the face of the petition, it is apparent the person detained has filed a challenge to alleged errors that occurred during or before sentencing and resentencing, and as such, this petition for writ of habeas corpus under § 2241 should be dismissed with prejudice.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (West 1994) (emphasis added)
By this action, Martin raises the following grounds for relief: a challenge to the Court's jurisdiction on the basis that the Court improperly delegated consideration of the motion under 28 U.S.C. § 2255 to a magistrate judge; a request for the Court to vacate the part of his judgment imposing restitution, claiming he will not have the resources to satisfy the payment; and a request for the Court to vacate the order imposing terms of supervised release. (Pet. at pages 6-7.) A motion filed under 28 U.S.C. § 2255, not § 2241, is the proper method of challenging errors that occurred during or before sentencing.
Although Martin cannot now bring this claim in a petition under § 2241 for the reasons stated infra, the Court notes that Martin's claim, based upon United States v. Johnson, 258 F.3d 361 (5th Cir. 2001), is misplaced. That case held that parties cannot consent under 28 U.S.C. § 636(c) to allow a magistrate judge to issue a final disposition on a motion under 28 U.S.C. § 2255. Id. at 372. Martin's motion under 28 U.S.C. § 2255 was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B) for the preparation of findings, conclusions and recommendation. The magistrate judge's recommendations, however, in each instance were reviewed and adopted by District Judge A. Joe Fish. Thus, the District Judge issued the final disposition denying Martin's claims for relief under 28 U.S.C. § 2255.
See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); see also Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997, citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) ("Attacks on the underlying conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241(c)"); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) ("appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing")
Martin acknowledges that he filed a previous motion under 28 U.S.C. § 2255. He alleges, however, that he is now asking the Court only to vacate the orders imposing restitution and supervised release. Martin argues that this Court should treat this action as a petition under 28 U.S.C. § 2241, although he fails to actually argue the inadequacy or ineffectiveness of his motion under 28 U.S.C. § 2255. (Pet. ¶ 12 (Martin answered "N/A" to the question of why a remedy under 28 U.S.C. § 2255 was inadequate). Section 28 U.S.C. § 2255 provides that a prisoner may file a writ of habeas corpus if the remedy provided by a § 2255 motion is "inadequate or ineffective to test the legality of his detention." Even construing Martin's arguments as a claim that he is entitled to invoke such "savings clause," such claim should be rejected. As noted above, Martin already sought and was denied relief under § 2255, and the court of appeals denied Martin's request for certificate of appealability. The Fifth Circuit has expressly held that a "prior unsuccessful § 2255 motion, or the inability to meet the AEDPA's second or successive requirement, does not make § 2255 inadequate or ineffective." Thus, the fact that Martin has already sought relief under 28 U.S.C. § 2255, without more, is not sufficient § 2255 savings clause inadequacy to justify allowing the filing of a petition under 28 U.S.C. § 2241. This petition under § 2241 should be summarily dismissed.
28 U.S.C.A. § 2255 paragraph 5 (West Supp. 2001)
See generally Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.) ("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 rets squarely on the petitioner"), cert. den'd, 122 S.Ct. 476 (2001)
See Tolliver, 211 F.3d at 878.
See Id.; see also Jeffers. 253 F.3d at 830 (setting forth the two-part "actual innocence" factors that must be satisfied for a petitioner to file a § 2241 petition in connection with § 2255's savings clause); see generally United States v. Peterman, 249 F.3d 458, 461-62 (6th Cir.) ("[n]o circuit court has to date permitted a post-AEDPA petitioner who was not effectively making a claim of `actual innocence' to utilize § 2241 (via § 2255's `savings clause') as a way of circumventing § 2255's restrictions on the filing of second or successive habeas petitions") (quoting Charles v. Chandler, 180 F.3d 753, 757 (6th Cir. 1999)), cert. den'd. 122 S.Ct. 493 (2001).
As the Court presided over Martin's conviction, the Court has jurisdiction to construe the instant action as a motion under 28 U.S.C. § 2255. See Pack v. Yusufff, 218 F.3d 448, 452 (5th Cir. 2000) (a section 2241 petition attacking the validity of a federal sentence must either be dismissed or construed as a section 2255 motion); see also Ojo, 106 F.3d at 683 (noting that although a § 2241 petition attacking matters within the province of § 2255 could be construed as a § 2255 motion, "a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that") citing Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987). Such construction is not appropriate here, however, because Martin expressly sought to proceed under 28 U.S.C. § 2241. In the alternative, even if the Court were to construe this action as a motion seeking relief under 28 U.S.C. § 2255, it would have to dismiss on the basis that Martin has failed to obtain circuit court authorization to file a successive motion under 28 U.S.C. § 2255. See 28 U.S.C. § 2255 paragraph 8.
RECOMMENDATION
It is recommended that petitioner Harold Martin's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 be DISMISSED WITH PREJUDICE to refiling under 28 U.S.C. § 2241.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) 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 recommendations until May 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
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until May 2, 2002 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations.
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 is hereby, returned to the docket of the United States District Judge.