Opinion
Civil Action No. 4:04-CV-774-Y.
March 7, 2005
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Gewahna Owens under 28 U.S.C. § 2241, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on February 7, 2005; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on March 1, 2005.
The Court, after de novo review, concludes that Owens's objections must be overruled, and that the petition for writ of habeas corpus under 28 U.S.C. § 2241 should be denied, for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
Owens objects to the magistrate judge's determination that she did not properly seek to amend her petition, such that her arguments based upon United States v. Booker, 125 S.Ct. 738 (2005) were not addressed. Such objection is overruled for the reasons stated by the magistrate judge. Even to the extent that Owens had properly sought and been granted leave to amend in the instant case with a claim based upon the recent Supreme Court decision, however, however, Owens has not shown that she may employ a petition under § 2241 to pursue such a claim. The Court of Appeals for the Fifth Circuit has defined the standard test to determine whether a petitioner may pursue relief through 28 U.S.C. § 2241 under the language of the 28 U.S.C. § 2255 savings clause to require a showing of three things:
28 U.S.C.A. § 2255 (West Supp. 2004) ("An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by [2255 motion] . . . shall not be entertained . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.")
(1) his claim is based on a retroactively applicable Supreme Court decision; (2) the Supreme Court decision establishes that he was "actually innocent" of the charges against him because the decision decriminalized the conduct for which he was convicted; and (3) his claim would have been foreclosed by existing circuit precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition.
Christopher v. Miles, 342 F.3d 378, 382 (5th Cir.), cert. den'd, Christopher v. Sisneros, 540 U.S. 1085 (2003), citing Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001) and Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Owens has not made this showing. Where the petitioner cannot make such a showing, a district court should dismiss the petition for lack of jurisdiction.
The Supreme Court's analysis in United States v. Booker, 125 S.Ct. 738 (2005), has not been found to be retroactively applicable. See Godines v. Joslin, No. 3:04-CV-2094-L, 2005 WL 177959, at *2 (N.D. Tex. Jan. 27, 2005) (noting that the Supreme Court has not yet addressed whether Booker should be extended to collateral-review cases), report and recommendation adopted by, 2005 WL 318808 (Feb. 8, 2005). The circuit courts that have considered the question have determined that the Booker analysis is not retroactive to collateral cases. See Varela v. United States, No. 04-11725, 2005 WL 367095, at *3-4 (11th Cir. Feb. 17, 2005); McReynolds v. United States, Nos. 04-2520, 04-2632, 04-2844, 2005 WL 237642, at *2 (7th Cir. Feb. 2, 2005); Green v. United States, No. 04-6564, 2005 WL 237204 at *1 (2nd Cir. Feb. 2, 2005).
Christopher, 342 F.3d at 379, 385.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Gewahna Owens's petition for writ of habeas corpus under 28 U.S.C. § 2241 be, and is hereby, DENIED.
It is further ORDERED that to the extent any claim based upon United States v. Booker, 125 S.Ct. 738 (2005) is before this Court, such claim be, and is hereby, DISMISSED for lack of jurisdiction.