1

Petitioner is currently incarcerated at FCI-Seagoville in Seagoville, Texas, serving a sentence of 180 months

imposed on him by the United States District Court for the Eastern District of Oklahoma (the “district court”), on

December 14, 1999, for attempting to manufacture methamphetamine. His conviction was affirmed by the Tenth Circuit

Court of Appeals on August 7, 2000. See United States v. Stephens, 229 F.3d 1165 (10th Cir. 2000)(unpublished table

opinion). Petitioner subsequently filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which was denied

by the district court on August 9, 2001. The Tenth Circuit denied Petitioner a certificate of appealability on August 6,

2002. Petitioner then attempted to file a second § 2255 motion in the district court, which was transferred to the Tenth

Circuit Court of Appeals on February 8, 2005. The Tenth Circuit denied him authorization to file a second habeas

petition on March 17, 2005. Petitioner then filed this petition for relief under 28 U.S.C. § 2241. 

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MALCOLM FLOYD STEPHENS, §

# 03666-053, §

§

Petitioner, §

v. § Civil Action No. 3:05-CV-0665-L 

§

D. JOSLIN, Warden, FCI-Seagoville, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

Petitioner Malcolm Floyd Stephens has filed this application for the writ of habeas corpus

under 28 U.S.C. § 2241.1 Pursuant to 28 U.S.C. § 636(b), and an order of the court in

implementation thereof, this action was referred to the United States magistrate judge for proposed

findings and recommendation. On July 14, 2005, the Findings, Conclusions and Recommendation

of the United States Magistrate Judge were filed, to which objections were filed on July 27, 2005.

The magistrate judge recommended that Garcia’s § 2241 petition be denied, as petitioner has

failed to meet the requirements of § 2241. In his objections, Petitioner contends that he has met the

requirements of § 2241 since: (1) he has exhausted his § 2255 remedies; and (2) pursuant to United

States v. Booker, __ U.S. __, 125 S.Ct. 738 (2005) and Blakely v. Washington, __ U.S. __, 124 S.Ct.

 

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2

In Blakely, the Supreme Court held that an enhanced sentence imposed by a judge under the Washington

Sentencing Reform Act violated the Sixth Amendment to the United States Constitution since the maximum sentence

a judge may impose is the sentence authorized “solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” 124 S.Ct. at 2537. In Booker, the Supreme Court (relying on Blakely) found the federal Sentencing

Guidelines unconstitutional insofar as they mandated sentencing enhancements above the Guidelines range, and held

that “[a]ny 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.” 125 S.Ct. at 756. 

Memorandum Opinion and Order – Page 2

2531 (2004), his sentence in this case was unconstitutional.2 Petitioner’s objections are without

merit. As the magistrate judge correctly stated, 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 § 2255 motion if it seeks relief based on

errors that occurred at trial or sentencing. Id. at 877-88. Habeas relief, however, may be appropriate

when the remedy provided under § 2255 is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d

827, 830-31 (5th Cir. 2000), cert. denied, 534 U.S. 1001(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 § 2255 motion, such a claim does not implicate his conviction for a substantive

offense. Moreover, Booker has not been held to apply retroactively to cases on collateral review.

Booker, __ U.S. ___, 125 S.Ct. 769 (Breyer, J.); see also In re Elwood, 408 F.3d 211, 213 (5th

Cir.2005) (and cases cited therein) (holding that Booker is not applicable to cases already final). As

 

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Memorandum Opinion and Order – Page 3

the magistrate judge also correctly noted, that petitioner may be precluded from raising this claim

in a second or successive § 2255 motion does not make that remedy “inadequate or ineffective.”

Jeffers, 253 F.3d at 830. Under these circumstances, petitioner is precluded from challenging his

conviction under 28 U.S.C. § 2241.

Having reviewed the pleadings, file and record in this case, and the findings and conclusions

of the magistrate judge, along with Petitioner’s objections thereto, the court determines that the

findings and conclusions are correct in recommending dismissal of the § 2241 petition.

Accordingly, the magistrate’s findings and conclusions are accepted as those of the court.

Petitioner’s § 2241 petition for the writ of habeas corpus is denied, and this action is dismissed with

prejudice. Final judgment will be issued by separate document.

It is so ordered this 9th day of August, 2005.

_________________________________

Sam A. Lindsay

United States District Judge

 

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