1

 Petitioner commenced this action by filing a “Memorandum of Law in Support of 28 U.S.C. § 2241.” The Court has

construed such filing as a petition for writ of habeas corpus filed pursuant to § 2241.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERTO MARTINEZ, ID # 28733-077, )

Petitioner, )

vs. ) No. 3:05-CV-0636-R 

)

DAN JOSLIN, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Petitioner is a federal prisoner incarcerated in FCI-Seagoville who challenges his federal

conviction in United States v. Martinez, No. 3:96-CR-117-R (N.D. Tex.) pursuant to 28 U.S.C. §

2241. (Pet. at 1.)1

 Dan Joslin, Warden of the Seagoville prison facility, is the named respondent.

In 1996, petitioner pled guilty to conspiracy to possess and distribute methamphetamine. On

August 20, 1996, this Court entered judgment against petitioner and sentenced him to imprisonment

for a term of 365 months. Petitioner unsuccessfully appealed his conviction and sentence. He also

challenged his conviction and sentence through a motion to vacate pursuant to a 28 U.S.C. § 2255,

which this Court denied on December 1, 1998. In 2001, the Fifth Circuit Court of Appeals denied

petitioner authorization to file a successive motion to vacate. 

 

 Case 3:05-cv-00636-R Document 3 Filed 09/23/05 Page 1 of 6 PageID 21
2

 On March 31, 2005, this Court received the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241 wherein petitioner claims that he was unfairly convicted and sentenced. He asserts that he may pursue his claims under § 2241 through the “savings clause” of 28

U.S.C. § 2255 because § 2255 is inadequate and ineffective to test the legality of his detention. He

contends that he now challenges his sentence and conviction under an intervening decision by the

Supreme Court, United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). He further contends

that he is actually innocent because he was not eligible to receive the sentence imposed. In view of

his Booker claim and claim of actual innocence, he argues that § 2255 is inadequate and ineffective.

He raises two claims in the instant petition – (1) breach of plea agreement and (2) due process

violations in light of Booker. The Court has not yet ordered an answer to the § 2241 petition.

II. JURISDICTION UNDER § 2241

Section 2241(a) provides district courts the power to grant a writ of habeas corpus to remedy

a petitioner’s restraint of liberty in violation of the constitution, treaties, or laws of the United States.

United States v. Hayman, 342 U.S. 205, 211-12 & n.11 (1952). “Habeas corpus relief is extraordinary

and ‘is reserved for transgressions of constitutional rights and for a narrow range of injuries that

could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage

of justice.’” Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955

F.2d 367, 368 (5th Cir. 1992)). While § 2255 provides the primary means of “collaterally attacking

a federal sentence” and is the appropriate remedy for “errors that occurred at or prior to the

sentencing,” § 2241 is the proper procedural vehicle in which to raise an attack on “the manner in

which a sentence is executed.” Padilla v. United States, 416 F.3d 424, 425-426 (5th Cir. 2005) (internal quotations and citations omitted). The remedy afforded under § 2241 is “no different” from the

 

 Case 3:05-cv-00636-R Document 3 Filed 09/23/05 Page 2 of 6 PageID 22
3

scope of remedy afforded under § 2255. Kinder, 222 F.3d at 214. However, a petition filed under

§ 2241 “is not . . . a substitute for a motion under § 2255.” See Jeffers v. Chandler, 253 F.3d 827, 830

(5th Cir. 2001).

A § 2241 petition that seeks to challenge the validity of a federal sentence, i.e., by attacking

errors that occurred at trial or sentencing, must either be dismissed or construed as a § 2255 motion.

See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). However, if a petitioner establishes that the

remedy provided under § 2255 is inadequate or ineffective to test the legality of his or her detention,

a § 2241 petition that attacks custody resulting from a federally imposed sentence may be entertained under the “savings clause” of § 2255. Padilla, 416 F.3d at 426. That clause provides: 

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. “[T]he burden of coming forward with evidence to show the inadequacy or

ineffectiveness of a motion under § 2255 rests squarely on the petitioner.” Jeffers, 253 F.3d at 830.

The case law is clear that “the inadequacy or inefficacy requirement is stringent.” Reyes-Requena v.

United States, 243 F.3d 893, 901 (5th Cir. 2001). If a petitioner who has filed a § 2241 petition fails

to show § 2255 to be inadequate or ineffective, then the Court lacks jurisdiction to consider the §

2241 petition. See Christopher v. Miles, 342 F.3d 378, 379 (5th Cir.) (remanding a case for dismissal

for lack of jurisdiction when the petitioner failed to show § 2255 inadequate or ineffective), cert.

denied, 540 U.S. 1085 (2003).

Utilization of § 2241 instead of § 2255 is limited to very specific situations, and a petitioner

seeking relief under the savings clause of § 2255 must demonstrate three things: 

 

 Case 3:05-cv-00636-R Document 3 Filed 09/23/05 Page 3 of 6 PageID 23
4

(1) his claim is based on a retroactively applicable Supreme Court decision; (2) the

Supreme Court decision establishes that he was ‘actually innocent’ of the charges

against him because the decision decriminalized the conduct for which he was convicted; and (3) his claim would have been foreclosed by existing circuit precedent

had he raised it at trial, on direct appeal, or in his original § 2255 petition.

Christopher, 342 F.3d at 382; accord Padilla, 416 F.3d at 426. One may not utilize § 2241 merely to

avoid procedural hurdles presented under § 2255, such as the one-year statute of limitations or

restriction on filing second or successive motions to vacate. See Pack, 218 F.3d at 453 (holding that

neither a limitations bar nor successiveness make § 2255 ineffective or inadequate); Tolliver v. Dobre,

211 F.3d 876, 878 (5th Cir. 2000) (holding that successiveness does not make § 2255 ineffective or

inadequate). As the Fifth Circuit noted in Pack,

[t]o hold otherwise would flout Congress’s obvious intent to give meaning to these

procedural requirements. A ruling that the section 2255 remedy was inadequate or

ineffective, such that a petitioner could invoke section 2241, simply because the

petitioner’s prior section 2255 motion was unsuccessful, or barred, or because he

could not file another motion, would render those procedural requirements a nullity

and defy Congress’s clear attempt to limit successive habeas petitions.

218 F.3d at 453.

In this case, petitioner essentially contends that § 2255 is ineffective or inadequate because

he cannot overcome the procedural requirements of that statute. Although he relies upon Booker,

that case is not retroactively applicable to cases on collateral review. See Padilla v. United States, 416

F.3d 424, 427 (5th Cir. 2005). Nor does it demonstrate that petitioner was convicted of a nonexistent offense. Id. Booker does not establish that petitioner was actually innocent of the charges

against him or decriminalize the conduct for which petitioner was convicted. Consequently, petitioner has failed to carry his burden to show § 2255 is ineffective or inadequate so that he can pursue

his claims under § 2241. 

 

 Case 3:05-cv-00636-R Document 3 Filed 09/23/05 Page 4 of 6 PageID 24
5

In light of such failure, the Court must either construe the action as arising under § 2255 or

dismiss it. See Pack, 218 F.3d at 452. Because neither the Supreme Court nor the Fifth Circuit has

made Booker retroactively applicable on collateral review, see In re Elwood, 408 F.3d 211, 212-13 (5th

Cir. 2005) (per curiam); United States v. Garcia, Nos. 3:03-CR-0268-L(01), 3:05-CV-0493-L, 2005

WL 1489926, at *2 (N.D. Tex. June 22, 2005), and because the Fifth Circuit has already denied

petitioner authorization to file a successive motion to vacate, the Court lacks jurisdiction to construe

the instant petition as a motion to vacate under 28 U.S.C. § 2255. See Hooker v. Sivley, 187 F.3d

680, 681-82 (5th Cir. 1999) (per curiam) (holding that “the district court lacked jurisdiction to

construe [a § 2241] petition as a § 2255 motion because [the petitioner] had not received prior

authorization from [the court of appeals] to file a successive § 2255 motion”). Accordingly, this

action should be dismissed for lack of jurisdiction. See Christopher, 342 F.3d at 379 (remanding a

case for dismissal for lack of jurisdiction when the petitioner failed to show § 2255 inadequate or

ineffective).

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the Court DISMISS petitioner’s application for habeas corpus relief brought pursuant to 28 U.S.C. § 2241 for lack of jurisdiction.

SIGNED this 23rd day of September, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-00636-R Document 3 Filed 09/23/05 Page 5 of 6 PageID 25
6

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-00636-R Document 3 Filed 09/23/05 Page 6 of 6 PageID 26