IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GEORGE WEBBER, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-0594-Y

§

COLE JETER, WARDEN, §

FMC-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 George Webber, Reg. No. 14047-045, is a federal prisoner incarcerated in the

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

Respondent Cole Jeter is Warden of FMC-Fort Worth. No service has issued on Respondent

in this case.

C. PROCEDURAL HISTORY

On June 13, 2001, Webber pled guilty to one count of distributing cocaine base in violation

 

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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:

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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of 21 U.S.C. § 841(a)(1) in the United States District Court for the Western District of Missouri,

Western Division, in Case No. 01-00082-01-CR-W-6. See CM/ECF, Criminal Docket for Case

#4:01-CR-00082-HFS-1, docket entry for June 13, 2001. On June 11, 2002, he was sentenced to

a term of 192 months’ incarceration. Id., entry for June 11, 2002. To no avail, Webber appealed

his sentence and pursued a motion to vacate, set aside or correct the sentence under 28 U.S.C. §

2255. Id., entry for November 27, 2002; CM/ECF, Civil Docket for Case #4:02-CV-01091-HFS,

docket entries for November 25, 2002 & April 15, 2003. On September 16, 2005, the Clerk of court

received for filing Webber’s petition under § 2241.

D. DISCUSSION

In his petition, Webber challenges the constitutionality of his 192-month sentence on the

basis of the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, 125 S. Ct. 738, 756 (2004).1

 According to Webber, his sentence was improperly

enhanced based on judge-found facts not agreed upon by the parties in the plea agreement or found

by a jury beyond a reasonable doubt.

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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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). 

The threshold question is whether Webber’s 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 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. 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); Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999).

Webber cannot satisfy the first prong of the Reyes-Requena test. He cannot demonstrate that

he was convicted of a nonexistent offense nor has the Booker/Blakely/Apprendi line of cases been

 

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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

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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applied retroactively to cases on collateral review. See Padilla v. United States, 416 F.3d 424, 427

(5th Cir. 2005).2 See also In 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).

The fact that Webber may be precluded from raising his claim in a second or successive § 2255

motion does not make that remedy inadequate or ineffective. See Jeffers, 253 F.3d at 830. Thus,

he is precluded from challenging the legality of his 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 Webber’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

 

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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 13, 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 October 13, 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 22, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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