IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LASHASTA KNIGHTON, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-0538-Y

§

GINNY VAN BUREN, Warden, §

Federal Medical Center–Carswell, § 

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation

thereof, the subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the United States Magistrate Judge, as evidenced by

his signature hereto, 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 Lashasta Knighton, federal prisoner # 14105-179, is confined in the Federal

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

Respondent Ginny Van Buren is the Warden of FMC-Carswell. No process has been issued

on Respondent in this case.

C. Factual Background

On July 22, 2002, Knighton pled guilty to one court of selling, distributing or dispensing

 

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In Booker, a majority of the Supreme Court extended to the federal Sentencing Guidelines

the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542

U.S. 296 (2004): pursuant to the Sixth Amendment, any fact, other than the fact of 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.” Booker, 125 S. Ct. at 756. A different majority of the Court

then determined the appropriate remedy was to sever and excise those statutory provisions making

the Guidelines mandatory, thereby rendering the Guidelines effectively advisory. Id. at 756-57. 

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narcotics in the United States District Court for the Eastern District of Texas, Lufkin Division, and,

on November 26, 2002, she was sentenced to a term of 188 months’ incarceration. See CM/ECF,

Criminal Docket for Case # 9:02-CR-12-RHC-6, docket entries for July 22, 2002 & November 26,

2002. Knighton appealed her conviction and sentence, but the Fifth Circuit Court of Appeals

dismissed the appeal as frivolous on September 16, 2003. Id., docket entry for November 20, 2003.

Thereafter, Knighton pursued postconviction collateral relief via a § 2255 motion to vacate to no

avail. Id., docket entry for November 20, 2003; CM/ECF Civil Docket for Case # 9:03-CV301-

RHC-HWM, docket entries for November 10, 2003 & March 23, 2004. On August 10, 2005,

Knighton filed this petition in the Dallas Division, and the petition was transferred to this division

by order dated August 23, 2005.

D. Legal Discussion

Knighton challenges her 188-month sentence on the basis of the Supreme Court’s decisions

in Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738, 756

(2004).1

This Court has the duty to assure that it has jurisdiction over the matters before it and may

raise a jurisdictional issue sua sponte at any time. See Burge v. Parish of St. Tammany, 187 F.3d

452, 465-66 (5th Cir. 1999); MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).

Federal Rule of Civil Procedure 12(h)(3) requires that federal courts dismiss an action “[w]henever

 

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Other circuit courts to consider the issue have also concluded that Booker does not apply

retroactively on collateral review. See Guzman v. United States, 404 F.3d 139, 141-44 (2nd Cir.

2005), petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 5, 2005) (No. 05-5187); 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), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 17, 2005) (No. 05-5130); McReynolds

(continued...)

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it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject

matter.” FED. R. CIV. P. 12(h)(3).

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 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. Reyes-Requena, 243 F.3d at 904.

Knighton cannot satisfy the first prong of the Reyes-Requena test. She fails to allege, cite

legal authority, or present a factual basis demonstrating that she was convicted of a nonexistent

offense. Further, the Fifth Circuit has recently held that Booker does not apply retroactively to cases

on collateral review. See Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005).2

 See also In

 

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(...continued)

v. United States, 397 F.3d 479, 480-81 (7th Cir.), cert. denied, 125 S. Ct. 2559 (2005); Never Misses

A Shot v. United States, 413 F.3d 781, 783-84 (8th Cir. 2005); United States v. Price, 400 F.3d 844,

846-49 (10th Cir. 2005), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 31, 2005) (No. 04-

10694); In re Anderson, 396 F.3d 1336, 1338-40 (11th Cir. 2005); United States v. Fowler, 133 Fed.

Appx. 922, 2005 WL 1416002, at *1 (4th Cir. June 17, 2005) (not designated for publication in the

Federal Reporter); In re Hinton, 125 Fed. Appx. 317, 2005 WL 566608, at *1 (D.C. Cir. Mar. 10,

2005) (not designated for publication in the Federal Reporter).

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re Elwood, 408 F.3d 211, 213 (5th Cir. 2005) (holding Booker does not apply retroactively on

collateral review for purposes of successive motion to vacate under § 2255). Knighton cannot meet

the retroactivity requirement, thus she is precluded from challenging the legality of her conviction

or sentence under § 2241. The court is without jurisdiction to consider the petition. See Padilla,

416 F.3d at 427; Christopher v. Miles, 342 F.3d 378, 379, 385 (5th Cir. ), cert. denied, 540 U.S. 1085

(2003).

II. RECOMMENDATION

It is therefore recommended that Knighton’s petition for writ of habeas corpus be dismissed

for lack 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 October 6, 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,

 

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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 October 6, 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

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 September 15, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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