Opinion
Case No. 01-3208-RDR.
September 7, 2001
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner confined at USP-Leavenworth, Leavenworth, Kansas, proceeds pro se.
PROCEDURAL HISTORY
On August 1, 1995, petitioner was convicted (one count of attempting to possess cocaine with intent to distribute and one count of knowingly using a communication facility in connection with attempting to possess cocaine) in the United States District Court for the District of Nevada. His conviction was affirmed. United States v. Robinson, 125 F.3d 860 (9th Cir. 1997), cert. denied 522 U.S. 1136 (1998). A motion for new trial based on newly discovered evidence was denied and affirmed on appeal.United States v. Robinson, 2001 WL 180559 (9th Cir. Feb. 22, 2001) (unpublished).
In this action filed pursuant to 28 U.S.C. § 2241, petitioner challenges his conviction by alleging his indictment and sentence are defective under Apprendi v. New Jersey, 530 U.S. 466 (2000), the federal trial court lacked jurisdiction because his crimes occurred within a single state, and the government withheld Brady material which he did not discover until after his trial. His amended petition (Doc. 5) adds additional claims concerning denial of his right to confront witnesses, use of perjured testimony, ineffective assistance of trial and appellate counsel and illegally admitted evidence.
The claim that his conviction was invalid for lack of jurisdiction was presented within a previous § 2241 petition and dismissed.Robinson v. United States, Case No. 99-3169 (dismissed May 25, 1999) aff'd Robinson v. United States, 194 F.3d 1231 (1999). Petitioner has previously filed a number of other § 2241 petitions with this court.See Robinson v. Booker, Case No. 99-3012 (§ 2241 petition dismissed March 12, 1999); Robinson v. United States, Case No. 993128 (§ 2241 petition dismissed May 26, 1999); Robinson v. United States, Case No. 99-3175 (§ 2241 petition dismissed May 26, 1999); and Robinson v. Ray, Case No. 01-3113 (presently pending, also raising Apprendi claims).
DISCUSSION
Petitioner is attacking the validity of his conviction. Section 2241, however, is generally reserved to challenge the execution of a sentence rather than its validity. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A petition under § 2241 "is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255." Id. Section 2241 review of petitioner's federal conviction is precluded unless petitioner demonstrates the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255.
Petitioner argues the remedy under § 2255 is inadequate or ineffective because he previously filed a motion pursuant to § 2255 and it was denied by the district court. Neither the failure to obtain relief under § 2255, Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963), nor the fact that relief under § 2255 may be barred by the gatekeeping requirements of AEDPA, Carvalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999), renders the remedy of § 2255 inadequate or ineffective. Compare United States v. Brooks, 230 F.3d 643, 648 (3rd Cir. 2000) (reviewing circuit cases granting recourse to § 2241 and finding such recourse is generally limited to petitioners who "have no other means of having . . . claim heard."), rehearing on separate issue, 245 F.3d 291 (3rd Cir. 2001) (en banc).
The petition filed in this matter would suggest the § 2255 motion filed by petitioner with the federal District Court in Nevada did not raise the Apprendi-based claims identified herein (see Doc. 1 at pp. 3-4 which indicates motion was denied December 13, 1998).
For example, the Tenth Circuit has interpreted AEDPA's restrictions on successive applications under § 2255 as tightening "application of the presumption against retroactivity of new constitutional rules by limiting it to situations in which the Supreme Court itself has declared that the new law should apply [retroactively]." Daniels v. United States, 254 F.3d 1180, 1196 (10th Cir. 2001). The Supreme Court has not yet made such an announcement concerning the rule announced in Apprendi.Id. at 1199.
Finding petitioner is challenging the validity of his conviction and that the record in this case does not demonstrate § 2255 relief is inadequate or ineffective, the petition should be denied.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner. A copy of both this Report and Recommendation and the Petition shall also be mailed to the Office of the United States Attorney in Topeka, Kansas.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.
Dated this ___ day of September, 2001, at Topeka, Kansas.