Opinion
No. 3:03-CV-809-L
February 13, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 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 follow:
FINDINGS AND CONCLUSIONS I. Factual background
Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner is an inmate in the federal prison system. Respondent is the United States.
On December 20, 1996, a jury in the Springfield Division of the Central District of Illinois found Petitioner guilty of embezzlement and misapplication of bank funds. He was sentenced to eighteen years imprisonment and ordered to pay $10,000 in restitution. On March 27, 1997, Petitioner filed an appeal. On January 26, 1998, the Seventh Circuit affirmed the convictions. United States v. Pardue, 134 F.3d 1316 (7th cir. 1998).
On September 8, 1998, Petitioner filed a motion under 28 U.S.C. § 2255 in the Central District of Illinois. On February 18, 1999, the court denied the motion. Petitioner appealed and September 7, 1999, the Seventh Circuit dismissed the appeal.
On May 21, 1999, Petitioner filed a motion under 28 U.S.C. § 2241 in the Eastern District of Texas, Texarkana Division. Pardue v. Conner, No. 99-CV-115 (E.D. Tex. 1999). On October 13, 1999, the district court dismissed the petition. On August 24, 2000, the Fifth Circuit dismissed the appeal. Pardue v. Conner, No. 99-41247, slip op. at 1-2 (Aug. 24, 2000) (Resp. Appendix pp. 1-2). The Court found the petition raised allegations of trial errors and therefore his claims should have been filed as a motion under § 2255 in the Seventh Circuit.
On April 18, 2003, Petitioner filed this petition. He argues his conviction is unlawful because of Brady violations, jurisdictional defects, perjured testimony, improper jury instructions, ineffective assistance of counsel, "outrageous conduct" by prosecutors and defense attorneys, and that he is actually innocent.
On September 2, 2003, Respondent filed a motion to dismiss. On September 18, 2003, Petitioner filed a motion for summary judgment. On February 2, 2004, Petitioner filed an additional memorandum. The Court now finds the petition should be dismissed.
II. Discussion
Title 28 U.S.C. § 2241 is typically used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). Title 28 U.S.C. § 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. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241, however, may be used by a federal prisoner to challenge the legality of his or her conviction or sentence if he or she can satisfy the requirements of the § 2255 "savings clause." The savings clause states:
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 legality of his detention.28 U.S.C. § 2255 (2001) (emphasis added).
The petitioner bears the burden of showing that the § 2255 remedy is inadequate or ineffective. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (quoting Pack v. Ysuff, 218 F.3d 448, 452 (5th Cir. 2000)). The Fifth Circuit has stated, " § 2241 is not a mere substitute for § 2255 and [ ] the inadequacy or inefficacy requirement is stringent." Reyes-Requena, 243 F.3d at 901; see also, Pack, 218 F.3d at 453 ("[M]erely failing to succeed in a section 2255 motion does not establish the inadequacy or ineffectiveness of the section 2255 remedy.").
The 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. See Reyes-Requena, 243 F.3d at 904.
Petitioner's claims do not fall under the savings clause. Petitioner raises claims challenging his conviction and sentence. These claims, however, are not (i) 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. See Reyes-Requena, 243 F.3d at 904. His petition under 28 U.S.C. § 2241 should be dismissed.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition under 28 U.S.C. § 2241 be dismissed with prejudice.