IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HUBBARD BELL, JR. §

§

Petitioner, §

§

VS. § NO. 3-05-CV-0964-B 

§ 

DAN JOSLIN, Warden, §

FCI-Seagoville §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Hubbard Bell, Jr., 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 was convicted by a federal jury in the Fort Worth Division of the Northern District

of Texas of various drug-related offenses in violation of 21 U.S.C. §§ 846 & 841(a)(1). Punishment

was assessed at a total of 360 months confinement followed by supervised release for a period of

10 years. His conviction and sentence were affirmed on direct appeal. United States v. Bell, No.

89-1774 (5th Cir. Feb. 14, 1991), cert. denied, 112 S.Ct. 984 (1992). Petitioner also filed a motion

to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255. The motion was summarily

denied. United States v. Bell, No. 4-89-CV-0871 (N.D. Tex. Jun. 10, 1991), aff'd, No. 91-1673 (5th

Cir. Jun. 10, 1992), cert. denied, 113 S.Ct. 294 (1992). The Fifth Circuit recently denied leave to

file a successive section 2255 motion. In re Bell, No. 05-10289 (5th Cir. Apr. 27, 2005).

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

 

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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.

sole ground for relief, 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. 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, appeal, and section 2255 motion, such a claim does not implicate his conviction for a

 

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

added). See also In re Elwood, ___ F.3d ___, 2005 WL 976998 at *3 (5th Cir. Apr. 28, 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." See Jeffers, 253 F.3d at 830; Jackson v. Joslin, 2005 WL

743056 at *1 (N.D. Tex. Mar. 31, 2005), rec. adopted, 2005 WL 1018027 (N.D. Tex. Apr. 28, 2005)

(Buchmeyer, 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

 

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relief is filed. 

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 8, 2005.

 

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