Sykes v. Van Buren

Full title: LENISE GIVENS SYKES, aka LITA L. SKINNER, Petitioner, v. GINNY VAN BUREN…

Court: United States District Court, N.D. Texas, Sykes Worth Division

Date published: Oct 6, 2004

Civil Action No. 4:04-CV-365-Y (N.D. Tex. Oct. 6, 2004)

Opinion

Civil Action No. 4:04-CV-365-Y.

October 6, 2004

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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 are as follows:

I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE

This is a purported petition for writ of mandamus that has been construed as a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.

B. PARTIES

Petitioner Lenise Given Sykes, aka Lita L. Skinner, Reg. No. 21405-048, is a federal prisoner incarcerated in the Federal Medical Center-Carswell in Fort Worth, Texas.

Respondent Ginny Van Buren is Warden of the Federal Medical Center-Carswell in Fort Worth, Texas.

C. PROCEDURAL HISTORY

Although it is unclear, in the instant proceeding, Sykes appears to challenge the Bureau of Prison's calculation of a previous 1980 federal sentence and the impact of that calculation on her criminal history category as it pertains to her 2000 federal sentence for conspiracy to commit fraud against a financial institution in the United States District Court in Greenbelt, Maryland and/or her 2004 federal sentences for wire fraud and money laundering in the United States District Court, District of Minnesota. (Federal Pet. at 9-14; Resp't Appendix 23-30.) Sykes seeks an "audit" of the previous federal sentence. According to Sykes, if the previous federal sentence and parole expiration date had been properly computed by the Bureau of Prisons, her 1980 conviction would have been over 15 years old and "by Federal law could not be held against her." (Federal Pet. at 9.)

Sykes's purported petition for writ of mandamus was construed as a petition for writ of habeas corpus under § 2241 by this district, where she is currently serving her federal sentences. The government has filed a response requesting that the petition be dismissed for lack of jurisdiction. (Resp't Response at 3-7.) Sykes has filed a reply to the government's response.

D. DISCUSSION

As noted, this action was previously construed as an action under 28 U.S.C. § 2241 in the undersigned's order dated June 22, 2004. It was so construed because, at first blush, it appeared Sykes was merely seeking credit against her current sentences and a recalculation of her release date. However, upon further reflection, it appears Sykes is actually alleging sentencing error in the criminal history computations as to her current federal sentences. The essence of her argument seems to be that the current sentences were incorrectly calculated under the sentencing guidelines because of the miscalculation by the Bureau of Prisons of the 1980 federal sentence and parole expiration date.

Typically, § 2241 is used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5^th Cir. 2000). Section 2255, on the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his or her conviction or sentence. See Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5^th Cir. 1990). Relief under this section is warranted for any error that occurred at or prior to sentencing.¹ Id. Section 2255 channels collateral attacks by federal prisoners to the sentencing court, rather than to the court in the district of confinement, as § 2241 requires, so that they can be addressed more efficiently. Reyes-Requena, 243 F.3d at 901 n. 18 (quoting Triestman v. United States, 124 F.3d 361, 373 (2^nd Cir. 1997)).

1 The court recognizes that § 2241 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 mandates of the so-called § 2255 "savings clause." See Reyes-Requena v. United States, 243 F.3d 893, 901 (5^th Cir. 2000). Section 2255 provides that a prisoner may file a writ of habeas corpus if a remedy by § 2255 motion is inadequate or ineffective to test the legality of his or her detention. See 28 U.S.C. § 2255. Nothing in the record indicates that Sykes has pursued a § 2255 motion in the sentencing court. Moreover, to establish that a § 2255 motion is inadequate or ineffective, the prisoner must show that: (1) his or her claim is based on a retroactively applicable Supreme Court decision which establishes that he or she may have been convicted of a nonexistent offense, and (2) his or her claim was foreclosed by circuit law at the time when the claim should have been raised in the prisoner's trial, appeal, or first § 2255 motion. Reyes-Requena, 243 F.3d at 904. The petitioner bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5^th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5^th Cir. 2000). Sykes has neither alleged nor demonstrated that she can meet this standard.

Thus, Sykes's attack on her sentences is not cognizable in a petition for writ of habeas corpus brought pursuant to § 2241. Her collateral attack must be asserted in a § 2255 motion, and the only court with jurisdiction to determine such a motion is the convicting court(s). Because Sykes may not assert the claim raised in this court, the petition should be dismissed for lack of jurisdiction.

II. RECOMMENDATION

It is recommended that this petition for writ of habeas corpus be dismissed for lack of jurisdiction.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until March 3, 2003. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until October 27, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 27, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.