Opinion
No. 3:04-CV-0440-H.
May 20, 2004
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 "motion for a writ of habeas corpus" brought by a federal prisoner pursuant to 28 U.S.C. § 1651, and/or for correction of sentence pursuant to Rule 60(b). Parties: Petitioner is a federal inmate currently confined at the Federal Medical Center Carswell in Fort Worth, Texas. The court has not issued process in this case.
The motion has been docketed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Statement of the Case: On August 9, 2001, Petitioner pled guilty to conspiracy to manufacture and to possess with the intent to distribute and to distribute a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846. United States v. Quimby, 3:01cr0177-H(03). The District Court sentenced Petitioner to 210 months imprisonment and a five-year term of supervised release on February 28, 2002. Id. She did not appeal to the Fifth Circuit Court of Appeals. On March 27, 2003, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel at sentencing. On July 17, 2003, the District Court adopted the findings, conclusions and recommendation of the undersigned magistrate judge and dismissed the § 2255 motion as barred by the one-year statute of limitations. Although Petitioner appealed, the Fifth Circuit subsequently dismissed the appeal as untimely filed.
In this habeas corpus action, Petitioner seeks relief from the six-point enhancement of her sentence, pursuant to the All Writs Act, 28 U.S.C. § 1651. Alternatively she seeks correction of her sentence pursuant to Rule 60(b), of the Federal Rules of Civil Procedure. Findings and Conclusions: "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum."Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
Petitioner has not submitted the $5.00 filing fee or a motion for leave to proceed in forma pauperis. Since this action should be liberally construed as a motion to vacate sentence, as set out more fully infra, no fee payment is required.
Section 1651 of the All Writs Act does not provide a basis for jurisdiction. "[T]he All Writs Act does not confer an independent basis for subject matter jurisdiction." Renteria-Gonzalez v. INS, 322 F.3d 804, 811 (5th Cir. 2002); accord, Morris v. T E Marine Corp., 344 F.3d 439, 443 (5th Cir. 2003) (citingSyngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002)); Brooks v. Wendt, 2004 WL 840125, *1 (N.D.Tex., 2004).
Insofar as Petitioner seeks habeas relief under 28 U.S.C. § 2241, this court likewise lacks jurisdiction to entertain her claims. Her petition clearly seeks to attack the legality of the sentence that she is currently serving. A collateral attack on a federal criminal conviction is generally limited to a motion to vacate, correct or set aside sentence under 28 U.S.C. § 2255.Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001);Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden, Fed. Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990). A § 2241 habeas petition is properly construed as a § 2255 motion if it seeks relief based on errors that occurred at trial or sentencing. Tolliver, 211 F.3d at 877-88. Habeas relief under § 2241 may be appropriate when the remedy provided under § 2255 is "inadequate or ineffective." — i.e., the so-called "savings clause." Jeffers, 253 F.3d at 830. "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." Id.
The savings clause of § 2255 states as follows:
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.
(Emphasis added).
In Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001), the Fifth Circuit recently held that the savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision, which establishes that 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.
Petitioner has not provided any reasons why the § 2255's remedy is either inadequate or ineffective. "A prior unsuccessful § 2255 motion, or the inability to meet the AEDPA's second or successive requirement, does not make § 2255 inadequate or ineffective." Jeffers, 253 F.3d at 830; see also Toliver, 211 F.3d at 878. Similarly, the mere fact that the limitation period set out in § 2255 as amended on April 24, 1996, may bar Petitioner from filing an untimely § 2255 motion does not render the remedy provided by that section inadequate or ineffective. ineffective. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (citing Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (stating that statute of limitations bar to filing a second § 2255 motion, without more, is insufficient to demonstrate inadequacy or inefficacy)).
Petitioner's reliance on Fed.R.Civ.P. 60(b) does not present a viable alternative to either the All Writs Act or § 2241. A federal prisoner can attack the legality of the sentence that he or she is currently serving only in a motion under 28 U.S.C. § 2255. The Fifth Circuit Court of Appeals has long held that § 2255 "provides the primary means of collateral attack on a federal sentence." Cox, 911 F.2d 1111, 1113; see also Tolliver, 211 F.3d 876, 878. The Fifth Circuit has also held that "courts may treat motions that federal prisoners purportedly bring under Rule 60(b), but which essentially seek to set aside their convictions on constitutional grounds as § 2255 motions."United States v. Rich, 141 F.3d 550, 551 and 553 (5th Cir. 1998).
Liberally construing Petitioner's pleading as a § 2255 motion, the same should be dismissed for want of jurisdiction because Petitioner has not received prior authorization from the Fifth Circuit to file a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3)(A) (providing that a second or successive motion filed by a person attacking a sentence under § 2255 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court). See also In re Epps, 127 F.3d 364 (5th Cir. 1997); In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996).
The claims that Petitioner seeks to raise in the present motion were available to her when she filed her initial § 2255 motion and are, thus, "second or successive" under the AEDPA. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). Petitioner was fully aware at sentencing about the six-point enhancement in her sentence. She conceded as much when she filed her first § 2255 motion challenging counsel's ineffectiveness specifically in connection with the enhancement of her sentence.
Although Movant's first § 2255 motion was dismissed as time barred, such a dismissal constituted an adjudications on the merits for purposes of the gate-keeping rules on second or successive petitions. See Villanueva v. United States, 346 F.3d 55, 61 (2nd Cir. 2003); Donaldson v. United States, 2003 WL 22959502, No. 01-cv-1061 (N.D.N.Y. Oct. 27, 2003); see also Anders v. Cockrell, 2003 WL 102615 at *2, 3:02cv2513-N (N.D. Tex. Jan. 08, 2003) (addressing issue in the context of a state habeas corpus petition).
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file a successive § 2255 motion, this court lacks jurisdiction to consider the same. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, the Rule 60(b) motion, construed as a § 2255 motion, should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Defendant's right to file a motion for leave to file a second or successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A).See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals). RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss the petition for habeas corpus relief for lack of jurisdiction to the extent it arises under 28 U.S.C. § 1651 and 2241.
It is further recommended that the motion for correction of sentence, pursuant to Rule 60(b), construed as a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, be dismissed without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A) and 2255.
The clerk will mail a copy of this recommendation to Petitioner at FMC Carswell in FortWorth, Texas.
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 to Douglass 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.