Opinion
3:02-CV-91-R
March 7, 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 District Court in implementation thereof; this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is federal inmate currently confined at the Federal Correction Institution (FCI) in Seagoville, Texas. Respondent is the United States of America. The court has not issued process in this case. Statement of the Case: Following a plea of not guilty, Petitioner was convicted in the Southern District of Texas of conspiracy to import heroin, conspiracy to possess with intent to distribute heroin, distribution of heroin and possession with intent to distribute heroin.See Martinez v. United States, 4:92-CR-279 (S.D. Tex., Houston Div.). The trial court sentenced Petitioner to 210 months imprisonment on each count to be served concurrently, followed by a five-year term of supervised release on each count to be served concurrently. The Fifth Circuit Court of Appeals affirmed the conviction. Martinez v. United States, No. 93-24 15 (5th Cir. March 7, 1994).
The District Court has subject matter jurisdiction over this § 2241 petition since Petitioner is confined within the Dallas Division of the Northern District of Texas. See Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001) (district of incarceration is the only district that has jurisdiction to entertain a petition under § 2241).
Petitioner then filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 in the convicting court, collaterally attacking his sentence. The court granted the government's motion for summary judgment and dismissed the § 2255 motion with prejudice. See Martinez v. United States, 4:97-CV-2597 (S.D. Tex., Houston Div. Dec. 4, 1997).
In the present habeas petition, Petitioner again seeks to collaterally attack his federal sentence.
Findings and Conclusions: Petitioner specifically files this § 2241 action under the "savings clause" of 28 U.S.C. § 2255. That clause provides:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief; by motion, to the court which sentenced him, or that such court has denied him relief; unless it also appears that the remedy by motion is inadequate or ineffective to test the ligality of his detention.28 U.S.C. § 2255 (emphasis added).
Pursuant to the "savings clause," a federal court may entertain a § 2241 petition that challenges a federally imposed sentence when "the petitioner establishes the remedy under § 2255 is inadequate or ineffective." Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). Such an action under § 2241 must be pursued in the district of incarceration. See Reyes-Requena v. United States, 243 F.3d 893, 906 (5th Cir. 2001). "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 rests squarely on the petitioner." Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 476 (2001).
Petitioner bases his § 2241 petition on Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000). He contends that under those cases, his indictment was defective because it did not specify the weight of the drugs for which he was sentenced. He also contends that he was sentenced above the statutory maximum, and that the district court lacked jurisdiction to try, convict or sentence him for anything other than a violation of 21 U.S.C. § 841(b)(1)(A).
The claims based upon Jones and Apprendi are not properly raised in a habeas corpus proceeding pursuant to § 2241. The Fifth Circuit has set forth a stringent test that must be met to proceed under the savings clause. See Reyes-Requena, 243 F.3d at 904. That test has two prongs — one based upon actual innocence and one based upon retroactivity. Id. at 903.
[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion. Under these circumstances, it can fairly be said, in the language of the savings clause, that "the remedy by [a successive § 2255] motion is inadequate or ineffective to test the legality of [the petitioner's] detention."Id. at 904 (footnote added). One does not necessarily satisfy the savings clause test, however, merely by meeting its two prongs. After enunciating that test, the Fifth Circuit specifically warned: "Of course, this test will operate in the context of our existing jurisprudence regarding what is not sufficient to obtain access to the savings clause." Id. (citingPack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) as reflective of such jurisprudence).
In Pack, the movant contended "that section 2255 relief [wa]s inadequate and ineffective because he [wa]s time-barred from bringing a second or successive section 2255 motion." 218 F.3d at 452. The court held that such contentions did not make § 2255 ineffective or inadequate. Id. Reyes-Requena does not eviscerate the jurisprudence reflected in Pack. See 243 F.3d at 904. It simply provides a remedy under § 2241, when the federal prisoner had no reasonable opportunity to correct a fundamental defect in his conviction.
In this instance, Petitioner's claims are not based upon a retroactively applicable Supreme Court decision. The Fifth Circuit has specifically noted that the Supreme Court has not yet made Apprendi retroactively applicable in a second or successive motion pursuant to § 2255. See In re Tatum, 233 F.3d 857, 858 (5th Cir. 2000) nor has the Supreme Court given a retroactive effect to Jones on collateral review. See Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000) (holding that "it is clear that the Supreme Court has not made the [Jones] rule retroactive to cases on collateral review"), cert. denied, 532 U.S. 924 (2001). Although the Fifth Circuit has not yet considered whether Apprendi is retroactively applicable on collateral review, this District and others have concluded that it is not. See, e.g., United States v. McNairy, Nos. 3:99-CR-364-P, 3:01-CV-0355-P, 2001 WL 649684, at *3 (N.D. Tex. June 8, 2001) (citing cases holding that Apprendi is not retroactively applicable on collateral review). The Fifth Circuit, furthermore, has not made Jones retroactively applicable on collateral review. Until Jones and Apprendi are made retroactively applicable on collateral review, they cannot form the basis for finding § 2255 inadequate or ineffective. Consequently, Petitioner is not entitled to habeas relief under § 2241.
The Fifth Circuit has, nevertheless, remanded a case "to the district court to reconsider its ruling denying . . . an amendment to his § 2255 motion based on futility in light of Apprendi." See United States v. Clark, 260 F.3d 382, 382 (5th Cir. 2001). Although Clark does not dictate any particular decision with respect to the retroactivity ofApprendi on collateral review, it does indicate that the Fifth Circuit has not yet decided the issue.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court deny Petitioner's application for habeas corpus relief; brought pursuant to 28 U.S.C. § 2241.
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.