IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DERRICK McNAIRY §

§

Petitioner, §

§

VS. § NO. 3-05-CV-1166-P 

§ 

WARDEN, FCI SEAGOVILLE §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Derrick McNairy, an inmate at FCI-Seagoville, has filed an application for writ

of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should

be construed as a motion to correct, vacate, or set aside sentence and dismissed as successive.

I.

Petitioner pled guilty to possession with intent to distribute more than 50 grams of cocaine

base in violation of 21 U.S.C. § 841(a)(1). Punishment was assessed at 180 months confinement

followed by supervised release for a period of five years. No appeal was taken. Instead, petitioner

filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255. That motion was

denied. United States v. McNairy, 2001 WL 649684 (N.D. Tex. Jun. 8, 2001), COA denied, 2003

WL 21140058 (5th Cir. Apr. 23, 2003). The Fifth Circuit recently denied leave to file a successive

section 2255 motion. In re McNairy, No. 05-10311 (5th Cir. Apr. 5, 2005).

Undeterred, petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241. In two

related grounds, petitioner contends that his sentence was enhanced by factors not alleged in the

indictment or determined by a jury as required by United States v. Booker, ___ U.S. ___, 125 S.Ct.

 

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1 In Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004), a majority of the Supreme

Court held that an enhanced sentence imposed by a judge under the Washington Sentencing Reform Act, which was

based on facts neither admitted by the defendant nor found by a jury, violated the Sixth Amendment to the United States

Constitution. Blakely, 124 S.Ct. at 2538. Booker extends that holding to invalidate the mandatory nature of the federal

sentencing guidelines. Booker, 125 S.Ct. at 755-56.

738, 160 L.Ed.2d 621 (2005).1 Process has been withheld pending a preliminary screening of the

habeas petition. 

II.

As a preliminary matter, the court must determine whether this claim is properly raised in

a section 2241 habeas petition. A collateral attack on a federal criminal conviction is generally

limited to a motion to correct, vacate or set aside sentence under 28 U.S.C. § 2255. Tolliver v.

Dobre, 211 F.3d 876, 877 (5th Cir. 2000). An application for writ of habeas corpus brought under

28 U.S.C. § 2241 is properly construed as a section 2255 motion if it seeks relief based on errors that

occurred at trial or sentencing. Id. at 877-88. However, habeas relief may be appropriate when the

remedy provided under section 2255 is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827,

830-31 (5th Cir. 2000), cert. denied, 122 S.Ct. 476 (2001). A petitioner must satisfy two factors to

show inadequacy. First, the claim must be "based on a retroactively applicable Supreme Court

decision which establishes that petitioner may have been convicted of a nonexistent offense." Id.

at 830, quoting Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Second, the

claim must have been "foreclosed by circuit law at the time when the claim should have been raised

in the petitioner's trial, appeal, or first § 2255 motion." Id.

Although petitioner's Booker argument was foreclosed by Fifth Circuit precedent at the time

of his trial and section 2255 motion, such a claim does not implicate his conviction for a substantive

offense. Moreover, Booker does not apply retroactively to cases on collateral review. Booker, 125

S.Ct. 769 (Breyer, J.), citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d

 

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649 (1987) (holding that decision applies "to all cases on direct review") (emphasis added). See also

In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005) (citing cases) (holding that Booker is not applicable

to cases already final). That petitioner may be precluded from raising this claim in a second or

successive section 2255 motion does not make that remedy "inadequate or ineffective." Jeffers, 253

F.3d at 830; see also Bell v. Joslin, 2005 WL 1383161 at *1 (N.D. Tex. Jun. 8, 2005) (Kaplan, J.).

Under these circumstances, petitioner is precluded from challenging his conviction under 28 U.S.C.

§ 2241.

III.

The Antiterrorism and Effective Death Penalty Act of 1996 limits the circumstances under

which a federal prisoner may file a second or successive motion for post-conviction relief.

ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). A

defendant must show that the successive motion is based on: (1) newly discovered evidence that,

if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that no reasonable factfinder would have found him guilty of the offense;

or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable. 28 U.S.C. § 2255. This determination must be made by a

three-judge panel of the court of appeals before defendant can file another motion in district court.

Id. §§ 2241 & 2255.

The Fifth Circuit has not issued an order authorizing the district court to consider this

successive motion. Petitioner must obtain such an order before another motion for post-conviction

relief is filed. 

 

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RECOMMENDATION

Petitioner's application for writ of habeas corpus should be construed as a motion to correct,

vacate, or set aside sentence and dismissed without prejudice pending authorization from the court

of appeals to file a successive motion in district court.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: June 22, 2005.

 

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