Opinion
Civil Action No. 4:01-CV-0074-Y
October 2, 2001
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of 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 are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to Title 28 of the United State Code, Section 2241.
B. PARTIES
Petitioner Darrell Ray Washington, Reg. No. 23973-077, is a federal prisoner incarcerated in the Federal Medical Center in Fort Worth, Texas.
Bob Guzik is the former Warden of the Federal Medical Center in Fort Worth, Texas, and was originally named as the respondent.
L.E. Fleming replaced Bob Guzik as Warden of the local Federal Medical Center, effective December 3, 2000, and is now the proper respondent in these proceedings.
C. PROCEDURAL HISTORY
Washington was charged in an indictment returned on December 2, 1992, in the Dallas Division of this Court in United States v. Washington, 3:92-CR-495-R, with violating 18 U.S.C. § 922(g)(1) by being a convicted felon in possession of a firearm which has been shipped or transported in interstate commerce. Pursuant to a written plea agreement entered into with the government, Washington changed his previously entered plea of not guilty to guilty to the crime charged in the indictment. Sentencing took place on June 30, 1993, during which the Court sentenced Washington to a term of imprisonment of 180 months, to be followed by a three-year term of supervised release, and a special assessment of $50.00. Judgment was entered on the same date. Washington did not prosecute a direct appeal from his conviction or sentence. Nor did he challenge his conviction or sentence by way of a post-conviction motion to vacate pursuant to 28 U.S.C. § 2255. More than seven years after the entry of the judgment in the underlying criminal case, Washington then came to this Court, filing pursuant to 28 U.S.C. § 2241, the instant petition for writ of habeas corpus, challenging his conviction and sentence as unlawful.
The Court takes judicial notice of its own records in United States v. Washington, No. 3:92-CR-495-R. See also a copy of the Indictment attached as an exhibit to government's response.
D. ISSUE
Washington now argues that sentencing him pursuant to the provisions of 18 U.S.C. § 924(e) (the Armed Career Criminal Act) was unlawful, because the crime for which he was convicted is not a crime of violence.
E. DISCUSSION
Although Washington has not explicitly so alleged, it appears that he is essentially arguing that his 180-month sentence is unlawful because the indictment failed to charge an offense pursuant to 18 U.S.C. § 924(e)(1); instead the indictment charged only an offense pursuant to 18 U.S.C. § 922(g)(1), for which punishment is limited to ten years' imprisonment. While not citing any case in support of his argument it appears that Washington might be claiming that he is entitled to relief pursuant to the principles enumerated in the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2349 (200O).
In brief, the United States Supreme Court in Apprendi held that, with the exception of prior convictions, any fact that increases the penalty for a crime beyond the maximum statutory penalty must be submitted to the jury and proven beyond a reasonable doubt. See also United States v. Nordby, 225 F.3d 1053, 1057 (9th Cir. 2000) (commenting that Apprendi is the latest in a series of cases in which the Supreme Court has expressed a heightened concern that the determination of "sentencing factors' by a judge using a preponderance-of-the-evidence standard implicates the accused's right to due process under the Fifth Amendment and right to a jury trial under the Sixth Amendment).
The petitioner's attack on his conviction and/or sentence is not cognizable in a petition for writ of habeas corpus brought pursuant to § 2241. A challenge to a conviction or sentence must be presented in a motion to vacate brought in the court of conviction pursuant to 28 U.S.C. § 2255. Because Washington's claim involves a challenge to his conviction and/or sentence, it must be asserted in a § 2255 motion, and the only court with jurisdiction to determine such a motion is the trial and sentencing court, i.e., the Dallas Division of this Court. See also Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997). citing, Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987). Thus, the Petitioner may not assert the claim raised in the instant proceeding in a petition pursuant to 28 U.S.C. § 2241, and therefore, the subject petition under § 2241 must be dismissed with prejudice.
Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997), citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) (attacks on the underlying conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) (when alleged errors occur at or prior to sentencing, the appropriate remedy is under § 2255, not 28 U.S.C. § 2241).
Since Washington is incarcerated in the Fort Worth Division of the Northern District of Texas, this Court is the appropriate division to make the determination whether Washington may proceed under 28 U.S.C. § 2241. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999), citing, United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
This Court recognizes that there is an exception to the general rule that allows a petitioner to file an attack on his conviction or sentence in the district of incarceration pursuant to Section 2241, if the petitioner can show that the remedy provided for under Section 2255 is "inadequate or ineffective to test the legality of the detention." 28 U.S.C. § 2255. The courts have held that under certain circumstances, a petitioner may be able to resort to the writ of habeas corpus under 28 U.S.C. § 2241 where the petitioner had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his sentence or conviction resulting from an intervening change in substantive law, or where preventing the federal prisoner from filing would raise a serious question as to § 2255's constitutionality. See In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998); In re Dorsainvil, 119 F.3d 245 (3th Cir. 1997); Treistman v. United States, 124 F.3d 361 (2nd Cir. 1997). The circumstances under which a petitioner may avail himself of § 2255's savings clause and pursue a collateral attack by way of § 2241 are very limited, however. See Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).
The fifth paragraph of Section 2255, the "savings clause," provides that:
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.
In a recent opinion, the Fifth Circuit Court of Appeals set forth the factors that must be satisfied for a petitioner to file a § 2241 petition pursuant to § 2255's savings clause. See Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001). First, the petitioners claim must be "based on a retroactively applicable Supreme Court decision that establishes that the petitioner may have been convicted of a nonexistent offense." Id. at 904. Second, the claim must have been "foreclosed by circuit law at the time when the claim should have been raised in the petitioners trial, appeal, or first § 2255 motion." Id. See also Jeffers v. Chandler, 253 F.3d 827 (5th Cir. 2001). The first prong of the Reyes-Requena's savings-clause test requires that a retroactively applicable Supreme Court decision establish that the petitioner is "actually innocent." See Reyes-Requena, 243 F.3d at 903-04. In explaining the requirement, the Fifth Circuit stated that "the core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law." Id. at 903.
The Courts have distinguished such circumstances from cases where the petitioner merely failed to timely file his § 2255 motion:
[If a remedy under § 2241] is preserved whenever a federal prisoner faces a substantive or procedural barrier to § 2255 relief . . . [and] any prisoner who is prevented from bringing a § 2255 petition, could, without more, establish that § 2255 is inadequate or ineffective, " and therefore that he is entitled to petition for writ of habeas corpus under § 2241(c)(3), then Congress would have accomplished nothing at all in its attempts — through statutes like the AEDPA — to place limits on federal collateral review. Courts have understandably refused to adopt this reading of the statute. (Citations omitted.)Treistman, 124 F.3d at 376. Washington's case does not fall in the uncommon situation where § 2241 relief is appropriate. Rather, the courts have consistently held that a prior unsuccessful § 2255 motion, or the inability to meet the AEDPA's gatekeeping requirements, does not make § 2255 inadequate or ineffective. See Tolliver v. Dobre, 211 F.3d 878, 878 (5th Cir. 2000) (per curiam). See also Charles v. Chandler. 180 F.3d 753, 757-58 (6th Cir. 1999); In re Davenport, 147 F.3d at 608. In an attempt to obtain relief pursuant to § 2241, Washington seems to claim that he is "actually innocent" of the conviction and resultant sentence. A claim of actual innocence has been recognized by some courts as a possible basis for review under § 2241 when § 2255's restrictions foreclose subsequent motions to vacate. See Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999); Treistman, 124 F.3d at 377-80. Pursuant to an agreement entered into with the government, Washington entered a plea of guilty to the subject crime. Washington does not allege that his plea of guilty was in any way unlawfully entered and, even if he had so alleged, there is no support whatever in the record to support such an allegation. Thus, any claim of actual innocence of the crime for which he was convicted is disingenuous. Further, any claim by Washington that he is actually innocent of certain criminal conduct upon which his guidelines sentence is based, is not the type of claim that courts have recognized may invoke review under § 2241. See Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000) (holding that prisoner's claim that career-offender guideline was not properly applied to his drug-conspiracy conviction, and that he was innocent" of the enhancement, was not in nature of claim that he was innocent of drug conspiracy offense itself, and did not permit prisoner to pursue his claim by filing habeas petition under § 2241 in district where he was incarcerated). Washington was not convicted of an arguably nonexistent offense. Thus, even if the Apprendi decision is made retroactively applicable, which has not yet occurred, a claim based upon Apprendi, while raising a potential defect in the manner in which Washington was sentenced, does not involve the sort of defect that can support a claim under the savings clause of § 2255. See Jeffers v. Chandler, 253 F.3d at 830-31. Washington has, therefore, not made the showing required to invoke the savings clause of § 2255. Id. See also Pack v. Yusuff, 218 F.3d 448, 452-54 (5th Cir. 2000).
See also Dorsainvil, 119 F.3d at 251 ("We do not suggest that § 2255 would be "inadequate or ineffective' so as to enable a second petitioner to invoke § 2241 merely because the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate Congress's intent in amending § 2255"); Davenport, 147 F.3d at 608.
Where the petitioner's case has been viewed as falling within the savings clause, it was in part because the petitioner was arguably convicted for a nonexistent offense based upon the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). See In re Davenport, 147 F.3d 605; Treistman, 124 F.3d 361; In re Dorsainvil, 119 F.3d 245; In re Vial, 115 F.3d 1192 (4th Cir. 1997) (en banc).
The Fifth Circuit has held that Apprendi is not applicable in a second or successive motion. See In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). Whether an Apprendi challenge raised in an initial § 2255 motion is barred pursuant to Teague v. Lane, 489 U.S. 288 (1989) is an open question in the Fifth Circuit, but the overwhelming majority of district courts, including this Court, have held that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review. See McCoy v. United States ___ F.3d ___ 2001 WL 1131653, *9 (11th Cir. September 25, 2001) (court holding that the new rule announced by the Supreme Court in Apprendi does not fall within either exception to Teague's non-retroactivity standard and, therefore, concluding that Apprendi does not apply retroactively on initial collateral review); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) and cases cited therein. See generally, Tyler v. Cain, 121 S.Ct. 2478 (2001) where the Supreme Court stated:
The only way the Supreme Court can, by itself, "lay out and construct" a rule's retroactive effect or "cause" that effect "to exist occur, or appear," is through a holding. The Supreme Court does not "ma[k]e" a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. (footnote omitted). We thus conclude that a new rule is not "made retroactive to cases on collateral review" unless the Supreme Court holds it to be retroactive. (footnote omitted).121 S.Ct. at 2482.
Apparently, as pointed out by the government in its response, Washington is simply attempting to circumvent the AEDPA's requirements regarding the filing of timely motions to vacate by filing the instant petition pursuant to § 2241 and seeking relief in this Court. Washington cannot use § 2241 to escape the restrictions on untimely § 2255 motions; the § 2255's savings clause does not exist to free a prisoner of the effects of his failure to raise an available claim earlier. See Wofford, 177 F.3d 1236. As indicated above, the fact that a § 2255 motion would now be time-barred does not make the remedy inadequate or ineffective. Treistman, 124 F.3d at 376. See also Dorsainvil, 119 F.3d at 251. In conclusion, Washington has not made the showing required to invoke the savings clause of § 2255. See Pack v. Yusuff, 218 F.3d 448, 452-54 (5th Cir. 2000).
Even if this Court were to review on the merits the claim raised in this petition, Washington is not entitled to relief. In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held that 8 U.S.C. § 1326(b)(2)'s enhancement provision was a sentencing factor, and not a separate criminal offense which must be alleged in the indictment. The Supreme Court in Apprendi expressly declined to overrule Almendarez-Torres. See Apprendi, 530 U.S. 489-90. See also United States v. Dabeit, 231 F.3d 979, 985 (5th Cir. 2000), cert denied, 121 S.Ct. 1214 (2001). Furthermore, several Circuits have expressly rejected the argument that the provisions of § 924(e) are elements of the offense. See United States v. Skidmore, 254 F.3d 635, 64043 (7th Cir. 2001) (holding that enhanced sentence under § 924(e) did not violate Apprendi where defendant had requisite three prior felony convictions). See also United States v. Affleck, 861 F.3d 97, 99 (5th Cir. 1988) (holding in a pre Apprendi case that § 924(e) "is intended only to provide enhanced punishment for those persons convicted under § 922(g). . . . [and that it is] not an element of the offense for which he was indicted and convicted"); United States v. Dorris, 236 F.3d 582, 587 (10th Cir. 2000) (holding that prior felony convictions are "mere sentence enhancements, not elements of an offense"); United States v. Mack, 229 F.3d 226 (3rd Cir. 2000) (same). Moreover, Washington's sentence was lawful. See Response to Motion Under 28 U.S.C. § 2241 at 2-3 and Presentence Investigation Report attached as an exhibit to government's response.
RECOMMENDATION
It is recommended that this petition for writ of habeas corpus be dismissed with prejudice.
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 October 23, 2001. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th 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.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until October 23, 2001, to serve and file, not merely place in the mail, 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.