1 The Court assumes for purposes of this motion that respondent intended to sue K. J. Wendt, who is the former Warden

of FCI-Seagoville.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JESUS JOSE ESCOBAR, ID # 68900-079, )

Petitioner, )

vs. ) No. 3:04-CV-1227-M 

)

K.W. WENDT, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Petitioner is a federal prisoner incarcerated in FCI-Seagoville who challenges his federal

conviction in United States v. Escobar, No. 96-CR-0084 (S.D. Tex.) pursuant to 28 U.S.C. § 2241.

(Am. Pet. at 1, 3.) K.W. Wendt is the named respondent.1

According to the petition, a jury found petitioner guilty of conspiracy to possess with intent

to distribute a controlled substance and aiding and abetting such possession on October 4, 1996.

On December 20, 1996, the United States District Court for the Southern District of Texas entered

judgment against petitioner and sentenced him to imprisonment for a term of 292 months.

Petitioner unsuccessfully appealed his conviction and sentence. He also challenged his conviction

and sentence through a motion to vacate pursuant to a 28 U.S.C. § 2255, which the Southern

 

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2

 The Court received the original petition on June 7, 2004. It appears identical to the amended petition, except that

the amended petition includes a page twenty-five that is missing from the original. 

2

District denied on April 26, 2000. Petitioner unsuccessfully appealed the denial of his motion to

vacate.

On June 23, 2004, this Court received the instant amended petition for writ of habeas corpus

pursuant to 28 U.S.C. § 22412

 wherein petitioner claims that he was unfairly tried and convicted.

He asserts that he may pursue his claims under § 2241 through the “savings clause” of 28 U.S.C. §

2255 because “he cannot meet the requirements of a ‘Second or Subsequent’ § 2255.” He contends

that he has no current avenue to present “his claim of actual presumed innocence.” The Court has

not yet ordered an answer to the § 2241 petition.

II. JURISDICTION UNDER § 2241

Section 2241(a) provides district courts the power to grant a writ of habeas corpus. A petitioner is entitled to a writ of habeas corpus under § 2241 only to remedy his or her restraint of liberty

in violation of the constitution, treaties, or laws of the United States, however. United States v.

Hayman, 342 U.S. 205, 211-12 & n.11 (1952). “Habeas corpus relief is extraordinary and ‘is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have

been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.’”

Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367,

368 (5th Cir. 1992)). The remedy afforded under § 2241 is “no different” from the scope of remedy

afforded under § 2255. Id. at 214. 

A petition filed under § 2241 “is not . . . a substitute for a motion under § 2255.” See Jeffers

v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). A motion under § 2255 “provides the primary means

 

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of collaterally attacking a federal conviction and sentence. Relief under this section is warranted for

errors that occurred at trial or sentencing.” Id. “A section 2241 petition that seeks to challenge the

validity of a federal sentence must either be dismissed or construed as a section 2255 motion.” See

Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). Nevertheless, § 2255 “contains a ‘savings clause,’

which acts as a limited exception to this general rule.” Id. That clause provides: 

An application for a writ of habeas corpus in behalf of a prisoner who is authorized

to apply for relief by motion pursuant to this section, shall not be entertained if it

appears that the applicant has failed to apply for relief, by motion, to the court which

sentenced him, or that such court has denied him relief, unless it also appears that

the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255. Because of this clause, “a section 2241 petition that seeks to challenge a federal

sentence or conviction-thereby effectively acting as a section 2255 motion-may only be entertained

when the petitioner establishes that the remedy provided for under section 2255 is inadequate or

ineffective.” Pack, 218 F.3d at 452. If an individual who has filed a § 2241 petition fails to show §

2255 to be inadequate or ineffective, then the Court lacks jurisdiction to consider the § 2241

petition. See Christopher v. Miles, 342 F.3d 378, 379 (5th Cir.) (remanding a case for dismissal for

lack of jurisdiction when the petitioner failed to show § 2255 inadequate or ineffective), cert. denied,

540 U.S. 1085 (2003). 

“[T]he burden of coming forward with evidence to show the inadequacy or ineffectiveness

of a motion under § 2255 rests squarely on the petitioner.” Jeffers, 253 F.3d at 830. Precedent

“regarding § 2255’s savings clause makes clear that § 2241 is not a mere substitute for § 2255 and

that the inadequacy or inefficacy requirement is stringent.” Reyes-Requena v. United States, 243 F.3d

893, 901 (5th Cir. 2001). Utilization of § 2241 instead of § 2255 is limited to very specific situations.

 

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A petitioner seeking relief under the § 2255 savings clause must demonstrate three

things: (1) his claim is based on a retroactively applicable Supreme Court decision;

(2) the Supreme Court decision establishes that he was ‘actually innocent’ of the

charges against him because the decision decriminalized the conduct for which he

was convicted; and (3) his claim would have been foreclosed by existing circuit

precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition.

Christopher, 342 F.3d at 382; accord Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005). One

may not utilize § 2241 merely to avoid procedural hurdles presented under § 2255, such as the oneyear statute of limitations or restriction on filing second or successive motions to vacate. See Pack,

218 F.3d at 453 (holding that neither a limitations bar nor successiveness make § 2255 ineffective

or inadequate); Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (holding that successiveness does

not make § 2255 ineffective or inadequate). 

To hold otherwise would flout Congress’s obvious intent to give meaning to these

procedural requirements. A ruling that the section 2255 remedy was inadequate or

ineffective, such that a petitioner could invoke section 2241, simply because the

petitioner’s prior section 2255 motion was unsuccessful, or barred, or because he

could not file another motion, would render those procedural requirements a nullity

and defy Congress’s clear attempt to limit successive habeas petitions.

Pack, 218 F.3d at 453.

In this case, petitioner merely contends that § 2255 is ineffective or inadequate because he

cannot overcome the procedural requirements of that statute. He invokes no new Supreme Court

decision that has been made retroactively applicable. He does not base his claim of innocence on

any such Supreme Court decision. Consequently, petitioner has failed to carry his burden to show

§ 2255 is ineffective or inadequate so that he can pursue his claims under § 2241. 

In light of such failure, the Court must either construe the action as arising under § 2255 or

dismiss it. See Pack, 218 F.3d at 452. Because petitioner was convicted in the Southern District of

Texas, this Court has no jurisdiction over a § 2255 motion filed by him. See Ojo v. INS, 106 F.3d

 

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680, 683 (5th Cir. 1997) (holding that “the only court with jurisdiction to hear [a motion to vacate]

is the court that sentenced [petitioner]”). Therefore, the Court has no recourse to construe and

consider the action as one under § 2255. Accordingly, this action should be dismissed for lack of

jurisdiction. See Christopher, 342 F.3d at 379 (remanding a case for dismissal for lack of jurisdiction

when the petitioner failed to show § 2255 inadequate or ineffective).

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the Court DISMISS petitioner’s application for habeas corpus relief brought pursuant to 28 U.S.C. § 2241 for lack of jurisdiction.

SIGNED this 8th day of September, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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