IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GLEN EDWARD JACKSON, )

ID # 26833-177, )

Petitioner, )

vs. ) No. 3:06-CV-0249-R (BH)

) ECF

DAN JOSLIN, ) Referred to U.S. Magistrate Judge

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. Jackson, No. 3:01-CR-0056-R (N.D. Tex.) pursuant to 28 U.S.C. §

2241. Petitioner names Dan Joslin as respondent.

On July 31, 2001, a jury convicted petitioner of being a felon in possession of a firearm. The

Court sentenced him to 210 months imprisonment. On February 5, 2004, the Court denied a

motion to vacate filed by petitioner wherein he argued that he was denied the effective assistance

of counsel when his attorney failed to note and argue his sentence as a career offender could not be

supported by court records. On February 24, 2004, the Court denied a motion to alter or amend

judgment related to that motion to vacate. On March 23, 2005, the Court received a second motion

 

 Case 3:06-cv-00249-R Document 5 Filed 11/15/06 Page 1 of 6 PageID 26
1

 Contemporaneously with these findings, the undersigned Magistrate Judge has recommended that the Court transfer

the second motion to vacate to the Fifth Circuit Court of Appeals as a successive motion.

2

to vacate wherein he asserts that he is actually and factually innocent of his enhanced sentence for

being an armed career criminal.1

 

 On February 8, 2006, this Court received the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 wherein petitioner again claims that he is actually and factually innocent

of his enhanced sentence for being an armed career criminal. Petitioner asserts that he may pursue

his claim under § 2241 through the “savings clause” of 28 U.S.C. § 2255 because § 2255 is

inadequate and ineffective to test the legality of his detention. He claims that, in light of Richardson

v. United States, 526 U.S. 813 (1999) and Shepard v. United States, 544 U.S. 9 (2005), the Court

unconstitutionally enhanced his sentence. He further claims that he is actually innocent of the

imposed sentence. 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 to remedy

a petitioner’s restraint of liberty in violation of the constitution, treaties, or laws of the United States.

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)). While § 2255 provides the primary means of “collaterally attacking

a federal sentence” and is the appropriate remedy for “errors that occurred at or prior to the

sentencing,” § 2241 is the proper procedural vehicle in which to raise an attack on “the manner in

 

 Case 3:06-cv-00249-R Document 5 Filed 11/15/06 Page 2 of 6 PageID 27
3

which a sentence is executed.” Padilla v. United States, 416 F.3d 424, 425-426 (5th Cir. 2005) (internal quotations and citations omitted). The remedy afforded under § 2241 is “no different” from the

scope of remedy afforded under § 2255. Kinder, 222 F.3d at 214. However, 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 § 2241 petition that seeks to challenge the validity of a federal sentence, i.e., by attacking

errors that occurred at trial or sentencing, must either be dismissed or construed as a § 2255 motion.

See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). However, if a petitioner establishes that the

remedy provided under § 2255 is inadequate or ineffective to test the legality of his or her detention,

a § 2241 petition that attacks custody resulting from a federally imposed sentence may be entertained under the “savings clause” of § 2255. Padilla, 416 F.3d at 426. 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. “[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.

The case law is clear that “the inadequacy or inefficacy requirement is stringent.” Reyes-Requena v.

United States, 243 F.3d 893, 901 (5th Cir. 2001). If a petitioner 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. 2003) (remanding a case for

dismissal for lack of jurisdiction when the petitioner failed to show § 2255 inadequate or ineffective).

 

 Case 3:06-cv-00249-R Document 5 Filed 11/15/06 Page 3 of 6 PageID 28
4

Utilization of § 2241 instead of § 2255 is limited to very specific situations, and a petitioner

seeking relief under the savings clause of § 2255 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, 416 F.3d at 426. One may not utilize § 2241 merely to

avoid procedural hurdles presented under § 2255, such as the one-year 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). As the Fifth Circuit noted in Pack,

[t]o 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.

218 F.3d at 453.

In this case, petitioner relies upon Richardson and Shepard for invoking the savings clause of

§ 2255. However, because Richardson was decided in 1999, a claim based upon that case was not

foreclosed by existing circuit precedent had he raised it at trial, on direct appeal, or in his original

§ 2255 petition. Neither Richardson nor Shepard, furthermore, demonstrate that petitioner was convicted of a nonexistent offense, is actually innocent of the charges against him, or decriminalize the

conduct for which petitioner was convicted. See, e.g., Wesson v. United States Penitentiary, 305 F.3d

 

 Case 3:06-cv-00249-R Document 5 Filed 11/15/06 Page 4 of 6 PageID 29
5

343, 347-48 (2002) (per curiam) (addressing Richardson); Blake v. Joslin, No. 3:05-CV-2519-R, 2006

WL 537406, at *3 (N.D. Tex. Feb. 23, 2006) (findings, conclusions, and recommendation addressing

Shepard), adopted by 2006 WL 537406 (N.D. Tex. Apr. 11, 2006). In addition, Shepard is not retroactively applicable to cases on collateral review. See, e.g., Blake, 2006 WL 537406, at *3. 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 neither the Supreme Court nor the Fifth Circuit has

made Shepard retroactively applicable on collateral review, and because the Fifth Circuit has not

granted petitioner authorization to file a successive motion to vacate, the Court lacks jurisdiction

to construe the instant petition as a motion to vacate under 28 U.S.C. § 2255. See Hooker v. Sivley,

187 F.3d 680, 681-82 (5th Cir. 1999) (per curiam) (holding that “the district court lacked jurisdiction to construe [a § 2241] petition as a § 2255 motion because [the petitioner] had not received

prior authorization from [the court of appeals] to file a successive § 2255 motion”). 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.

 

 Case 3:06-cv-00249-R Document 5 Filed 11/15/06 Page 5 of 6 PageID 30
6

SIGNED this 15th day of November, 2006. 

 ___________________________________

 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

 

 Case 3:06-cv-00249-R Document 5 Filed 11/15/06 Page 6 of 6 PageID 31