IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

REGINALD D. SHEPPARD, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-079-Y

§

COLE JETER, WARDEN, §

Federal Medical Center-Fort Worth, § 

Respondent. §

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 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 petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. §

2241.

B. PARTIES

Petitioner Reginald D. Sheppard, Reg. No. 29246-077, is a federal prisoner incarcerated in

the Federal Medical Center in Fort Worth, Texas (FMC-Fort Worth).

Respondent Cole Jeter is Warden of FMC-Fort Worth.

C. PROCEDURAL HISTORY

On January 17, 1997, in Case No. 4:96-CR-153-1, Sheppard pled guilty to maintaining a

place to distribute a controlled substance, cocaine base, and aiding and abetting, in violation of 21

 

 Case 4:05-cv-00079-Y Document 9 Filed 06/01/05 Page 1 of 6 PageID 78
2

U.S.C. § 856(a)(1) and 18 U.S.C. § 2. See PACER, U.S. Party/Case Index, Criminal Docket for

Case # 4:96-CR-153-1, entry for January 17, 1997. On April 18, 1997, he was sentenced to a term

of 135 months’ incarceration. See id., entry for April 18, 1997. Sheppard appealed the trial court’s

judgment of conviction and sentence, but the Fifth Circuit affirmed on January 5, 1998. See id.,

entry for December 10, 1997. Thereafter, Sheppard sought postconviction relief via 28 U.S.C. §

2255 to no avail. See id., entries for January 1, 1999 & October 29, 1999. On January 30, 2005,

Sheppard filed this federal petition under § 2241.

D. DISCUSSION

By the instant habeas corpus action, Sheppard challenges his 135-month sentence on the

basis of the Supreme Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004)

(reaffirming holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that “any fact (other than

a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved

to a jury beyond a reasonable doubt”), and United States v. Booker, 125 S. Ct. 738, 756 (2005)

(applying Apprendi to the Federal Sentencing Guidelines). Specifically, he asserts that his sentence

was unconstitutionally enhanced under the federal sentencing guidelines based on judge-found facts

under a preponderance-of-the-evidence standard. (Pet’r Memorandum of Law at 6-7.)

The threshold question is whether his claim is properly raised in a § 2241 habeas petition.

Typically, § 2241 is used to challenge the manner in which a sentence is executed. See Warren v.

Miles, 230 F.3d 688, 694 (5th Cir. 2000). Section 2255, on the other hand, is the primary means

under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See

Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241 may be used by

a federal prisoner to challenge the legality of his conviction or sentence only if he can satisfy the

 

 Case 4:05-cv-00079-Y Document 9 Filed 06/01/05 Page 2 of 6 PageID 79
3

mandates of the so-called § 2255 “savings clause.” See Reyes-Requena v. United States, 243 F.3d

893, 901 (5th Cir. 2001). 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 detention.” See

28 U.S.C. § 2255. 

To establish that a § 2255 motion is inadequate or ineffective, the prisoner must show that:

(1) his claim is based on a retroactively applicable Supreme Court decision which establishes that

he may have been convicted of a nonexistent offense, and (2) his claim was foreclosed by circuit law

at the time when the claim should have been raised in his trial, appeal, or § 2255 motion. ReyesRequena, 243 F.3d at 904. A § 2241 petition is not a substitute for a motion under § 2255, and the

petitioner bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective.

Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.

2000). A prior unsuccessful § 2255 motion, or the inability to meet the statute’s second or

successive requirement, does not make § 2255 inadequate or ineffective. Jeffers, 253 F.3d at 830;

Toliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

Sheppard has not provided any valid reason why the § 2255’s remedy is either inadequate

or ineffective. Relying on Davis v. United States, 417 U.S. 333 (1974), and relevant Fifth Circuit

case law, Sheppard contends that he is entitled to seek § 2241 relief under the § 2255 savings clause

based on the intervening change in the substantive criminal law as articulated in Blakely and Booker,

unavailable to him during his trial, direct appeal or § 2255 motion, because he is “actually innocent

of the defective indictment,” which failed to allege sentencing factors determined by the judge under

a preponderance of the evidence standard and used to illegally enhancement his sentence. (Pet’r

Memorandum of Law at 4-5.) 

Although the Supreme Court’s decisions in Blakely and Booker were not decided until 2004

 

 Case 4:05-cv-00079-Y Document 9 Filed 06/01/05 Page 3 of 6 PageID 80
1

See Booker, 125 S. Ct. at 769 (Op. by Breyer, J.) (expressly extending holding “to all cases

on direct review”); Schriro v. Summerlin, 124 S. Ct. 2519, 2526 (2004) (holding Ring v. Arizona,

536 U.S. 584 (2002), which extended application of Apprendi to facts increasing a defendant’s

sentence from life imprisonment to death, is not retroactive to cases on collateral review).

2

The circuit courts to consider the issue have all concluded that Booker does not apply

retroactively on collateral review. See In re Elwood, ___ F.3d ___, 2005 WL 976998, at *2-3 (5th

Cir. Apr. 28, 2005); Guzman v. United States, 404 F.3d 139, 141-44 (2nd Cir. 2005); In re Olopade,

403 F.3d 159, 160-64 (3rd Cir. 2005); Humphress v. United States, 398 F.3d 855, 860-61 (6th Cir.

2005); McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005), petition for cert. filed ___

U.S.L.W. ___ (U.S. Apr. 29, 2005) (No. 04-9994); United States v. Price, 400 F.3d 844, 846-49 (10th

Cir. 2005); In re Anderson, 396 F.3d 1336, 1338-40 (11th Cir. 2005); In re Hinton, 2005 WL 566608,

at *1 (D.C. Cir. Mar. 10, 2005) (not designated for publication). See also Wesson v. U.S.

Penitentiary, Beaumont, Tx, 305 F.3d 342, 347-48 (5th Cir. 2000), cert. denied, 537 U.S. 1241 (2003)

(holding Apprendi does not apply retroactively to cases on collateral review and an Apprendi claim

does not satisfy the requirements for filing a habeas petition under the § 2255 savings clause).

4

and 2005, respectively, contrary to his assertion, Sheppard cannot satisfy the first prong of the test.

His claim does not implicate his conviction for a substantive criminal offense nor has the Supreme

Court expressly declared Blakely or Booker to be retroactive to cases on collateral review.1, 2 The

Blakely/Booker line of cases is essentially an extension of the procedural rules expressed in

Apprendi and Ring. Like Apprendi and Ring, the Blakely/Booker rule appears to merely “allocate

decisionmaking authority” with respect to sentencing, rather than stating a new substantive rule that

may upset a judgment of conviction on collateral review. See Schirro, 124 S. Ct. at 2523-24

(holding that Ring established a new procedural rule that does not apply retroactively to cases

already final on direct review). Under these circumstances, Sheppard is precluded from challenging

the legality of his sentence under § 2241. Thus, the court is without jurisdiction to consider the

petition. See Christopher v. Miles, 342 F.3d 378, 379, 385 (5th Cir. ), cert. denied, 540 U.S. 1085

(2003).

II. RECOMMENDATION

Because Sheppard has not made the showing required to invoke the savings clause of § 2255

 

 Case 4:05-cv-00079-Y Document 9 Filed 06/01/05 Page 4 of 6 PageID 81
5

as to the claims presented in this habeas corpus proceeding, it is recommended that the government’s

motion to dismiss be granted and that Sheppard’s petition be dismissed with prejudice for want 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 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 June 22, 2005. 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 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 22, 2005, 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

 

 Case 4:05-cv-00079-Y Document 9 Filed 06/01/05 Page 5 of 6 PageID 82
6

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. 

SIGNED June 1, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:05-cv-00079-Y Document 9 Filed 06/01/05 Page 6 of 6 PageID 83