Opinion
Civil Action No. 1:05cv770.
June 14, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Daniel L. Spence, an inmate confined in the Federal Correctional Complex in Beaumont, Texas, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Factual Background and Procedural History
On September 11, 1998, in the United States District Court for the Northern District of Maryland, petitioner was convicted of conspiracy to commit bank robbery, attempted bank robbery, two counts of use of a firearm, victim tampering, arson in furtherance of victim tampering, extortion, and five counts of aiding and abetting. Petitioner was sentenced to 713 months imprisonment.
Petitioner appealed his convictions and sentences to the Fourth Circuit Court of Appeals. On July 6, 1999, the judgment of the district court was affirmed.
The Petition
Petitioner brings this petition asserting the following grounds for review: (1) he was sentenced using elements that were not alleged in the indictment; and (2) the district court erred in sentencing him on multiple counts charging him with violating 924(c) because his sentence was enhanced in connection with the predicate offense when the acts were part of one incident occurring on one day.
Analysis
Petitioner is not challenging the manner in which his sentence is being executed. Instead, he attacks the legality of his conviction and sentence. Section 2255 provides the primary means of collaterally attacking a federal conviction and sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Relief under this section is warranted for errors that occurred at trial or sentencing. Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). "[A] petition for a writ of habeas corpus pursuant to section 2241 is not a substitute for a motion under [section] 2255." Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000) (quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)). As petitioner attacks the legality of his convictions, his petition should be construed as a motion to vacate, set aside or correct sentence. However, this court is without jurisdiction to entertain a § 2255 motion as petitioner was convicted in the United States District Court for the Northern District of Maryland. Further, petitioner is attempting to proceed under section 2241 pursuant to the "savings clause" provided in section 2255.
Section 2241 is correctly used to attack the manner in which a sentence is executed. Tolliver, 211 F.3d at 877. A petition filed under § 2241 which attacks errors that occurred at trial or sentencing is properly construed as a § 2255 motion. Id. at 877-78. However, section 2255 contains a "savings clause," which acts as a limited exception to this general rule. The savings clause provides the following:
"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.
Petitioner asserts that his conviction and sentence are unconstitutional under the Supreme Court rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Petitioner's argument is directed toward an error in his conviction, as well as a sentencing error; such an argument may not be brought under 28 U.S.C. § 2241. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005). Petitioner's argument that he is entitled to proceed under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C. § 2255 because relief under that section is "inadequate or ineffective" is unavailing. See id. at 427 (holding that a claim under Booker does not fit within the savings clause of 28 U.S.C. § 2255). Accordingly, the petition should be dismissed.
Recommendation
The above-styled petition for writ of habeas corpus should be dismissed.
Objections
Within ten (10) days after being served with a copy of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FHello This is a Test ED. R. CIV. P. 72.