IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

REGINALD TRENT ROSE, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-0388-Y

§

COLE JETER, Warden, §

Federal Medical Center-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 Reginald Trent Rose, Reg. No. 30206-077, 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.

C. PROCEDURAL HISTORY

In Case No. 4:97-CR-134-1, Rose was charged with the manufacture and distribution of

crack cocaine and aiding and abetting in violation of 21 U.S.C. § 856(a) and 18 U.S.C. § 2. See

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 1 of 10 PageID 58
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

REGINALD TRENT ROSE, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-0388-Y

§

COLE JETER, Warden, §

Federal Medical Center-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 Reginald Trent Rose, Reg. No. 30206-077, 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.

C. PROCEDURAL HISTORY

In Case No. 4:97-CR-134-1, Rose was charged with the manufacture and distribution of

crack cocaine and aiding and abetting in violation of 21 U.S.C. § 856(a) and 18 U.S.C. § 2. See

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 2 of 10 PageID 59
1

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.

2

CM/ECF, Criminal Docket for Case # 4:97-CR-134-1. Rose was found guilty of the offenses by a

jury on January 30, 1998, and, on April 27, 1998, was sentenced to a term of 240 months for each

offense, the sentences to run concurrently. Id., docket entries for January 30, 1998 & April 27,

1998. Thereafter, Rose appealed the trial court’s judgment and sought postconviction relief via 28

U.S.C. § 2255 to no avail. Id., entries for April 23, 1999 & May 8, 2002. Rose filed this petition

under § 2241 on June 2, 2005. 

D. DISCUSSION

Rose attacks his sentence based on the Supreme Court’s decisions in Blakely v. Washington,

542 U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).1

 The essence of his

claims is that his sentence was illegally enhanced under the federal sentencing guidelines based on

judge-found facts, not found by a jury beyond a reasonable doubt, regarding relevant conduct of

which he was actually innocent. (Petition at 4-6; Pet’r Memorandum in Support at 3-17.)

The threshold question is whether Rose’s claims are 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

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 3 of 10 PageID 60
1

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.

2

CM/ECF, Criminal Docket for Case # 4:97-CR-134-1. Rose was found guilty of the offenses by a

jury on January 30, 1998, and, on April 27, 1998, was sentenced to a term of 240 months for each

offense, the sentences to run concurrently. Id., docket entries for January 30, 1998 & April 27,

1998. Thereafter, Rose appealed the trial court’s judgment and sought postconviction relief via 28

U.S.C. § 2255 to no avail. Id., entries for April 23, 1999 & May 8, 2002. Rose filed this petition

under § 2241 on June 2, 2005. 

D. DISCUSSION

Rose attacks his sentence based on the Supreme Court’s decisions in Blakely v. Washington,

542 U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).1

 The essence of his

claims is that his sentence was illegally enhanced under the federal sentencing guidelines based on

judge-found facts, not found by a jury beyond a reasonable doubt, regarding relevant conduct of

which he was actually innocent. (Petition at 4-6; Pet’r Memorandum in Support at 3-17.)

The threshold question is whether Rose’s claims are 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

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 4 of 10 PageID 61
2

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), cert. denied, 126 U.S. 199 (2005); 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).

3

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.

Rose cannot satisfy the first prong of the Reyes-Requena test. Rose fails to cite legal

authority or present a factual basis demonstrating that he was convicted of a nonexistent offense.

Further, the Fifth Circuit has held that the Booker line of cases does not apply retroactively to cases

on collateral review. See Padilla v. United States, 416 F.3d 424, 426-27 (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). Because Rose cannot

meet the retroactivity requirement, he is precluded from challenging the legality of his sentence

under § 2241. Thus, the court is without jurisdiction to consider the petition. See Padilla, 2005 WL

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 5 of 10 PageID 62
2

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), cert. denied, 126 U.S. 199 (2005); 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).

3

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.

Rose cannot satisfy the first prong of the Reyes-Requena test. Rose fails to cite legal

authority or present a factual basis demonstrating that he was convicted of a nonexistent offense.

Further, the Fifth Circuit has held that the Booker line of cases does not apply retroactively to cases

on collateral review. See Padilla v. United States, 416 F.3d 424, 426-27 (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). Because Rose cannot

meet the retroactivity requirement, he is precluded from challenging the legality of his sentence

under § 2241. Thus, the court is without jurisdiction to consider the petition. See Padilla, 2005 WL

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 6 of 10 PageID 63
4

1595291, at *3; Christopher v. Miles, 342 F.3d 378, 379, 385 (5th Cir. ), cert. denied, 540 U.S. 1085

(2003).

II. RECOMMENDATION

Because Rose has not made the showing required to invoke the savings clause of § 2255 as

to the claim presented in this habeas corpus proceeding, it is recommended that the government’s

motion to dismiss be granted and that Rose’s petition be dismissed with prejudice for want 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 November 23, 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

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 7 of 10 PageID 64
4

1595291, at *3; Christopher v. Miles, 342 F.3d 378, 379, 385 (5th Cir. ), cert. denied, 540 U.S. 1085

(2003).

II. RECOMMENDATION

Because Rose has not made the showing required to invoke the savings clause of § 2255 as

to the claim presented in this habeas corpus proceeding, it is recommended that the government’s

motion to dismiss be granted and that Rose’s petition be dismissed with prejudice for want 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 November 23, 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

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 8 of 10 PageID 65
5

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 November 23, 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 November 2, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 9 of 10 PageID 66
5

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 November 23, 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 November 2, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:05-cv-00388-Y Document 12 Filed 11/02/05 Page 10 of 10 PageID 67