IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GRADY LYNN COX, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-186-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 Grady Lynn Cox, Reg. No.07538-078 is a federal prisoner incarcerated in the

Federal Medical Center-Fort Worth, in Fort Worth, Texas.

Respondent Cole Jeter is Warden of the Federal Medical Center-Fort Worth.

C. PROCEDURAL HISTORY

Following a jury trial in the United States District Court for the Eastern District of Texas,

Texarkana Division, Cox was found guilty of three counts of sexual exploitation of a minor, in

 

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violation of 18 U.S.C. § 2252, and was sentenced on February 17, 2000 to a term of 78 months on

each count, the sentences to run concurrently. See CM/ECF, Criminal Docket for Case # 5:98-CR26-DF, docket entries for December 2, 1999 & February 17, 2000. The Fifth Circuit Court of

Appeals affirmed Cox’s convictions and sentences on April 12, 2001. Id., docket entry for April 12,

2001. Thereafter, Cox filed a 28 U.S.C. § 2255 motion in the district court, which was denied on

September 2, 2003. Id., docket entry for Sept. 2, 2003. The Fifth Circuit Court of Appeals denied

his certificate of appealability on April 29, 2004. On March 10, 2005, Cox filed the instant petition

under § 2241 in this district, where he is currently serving his sentences. The government has

moved that the petition be dismissed as a successive § 2255 motion. (Resp’t Motion to Dismiss at

5.)

D. DISCUSSION

By this action, Cox indirectly attacks his convictions on the basis that he was tried and

convicted under an unconstitutional statute by challenging the constitutionality of § 2255 and the

§ 2255 proceedings in the sentencing court. (Petition at 4-5; Pet’r Memorandum at 15.) 

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,

 

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Cox relies on the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S.

234 (2002), for his contention that he was convicted under an unconstitutional statute and thus he

is actually innocent. In Ashcroft v. Free Speech Coalition, the Supreme Court struck down, as over

broad and unconstitutional, portions of the Child Pornography Prevention Act of 1996 that are

inapplicable to Cox’s case. See id. at 241, 258; United States v. Chrobak, 289 F.3d 1043, 1046 n.3

(continued...)

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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 first § 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.); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). 

Cox claims that he is entitled to seek § 2241 relief under the § 2255 savings clause (1)

because the sentencing court failed to address most of his claims raised in his § 2255 motion and to

take judicial notice of Supreme Court precedent holding 18 U.S.C. § 2252 unconstitutional in part,

and (2) because the Fifth Circuit denied him a certificate of appealability. Cox urges that he has no

other avenue of redress and if § 2241 jurisdiction is not invoked he will be deprived of a meaningful

opportunity to attack his convictions or sentences. (Pet’r Memorandum in Support at 8-9.) Lack

of success in the sentencing court, however, does not render the remedy under § 2255 inadequate

or ineffective. See Pack, 218 F.3d at 452-53; Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

Cox’s § 2255 motion effectively offered him an opportunity to challenge the legality of his

detention. Thus, Cox is not entitled to use the savings clause of § 2255 to challenge his underlying

convictions and sentences by petitioning under § 2241. Cox has not made the showing required to

invoke the savings clause of § 2255 as to the claims presented in this habeas corpus proceeding, and

the court is therefore without jurisdiction to consider the petition.1

 See Christopher v. Miles, 342

 

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(...continued)

(8th Cir. 2002) (noting that Ashcroft v. Free Speech reaffirmed the validity of 18 U.S.C. § 2252).

Even if Cox could show that Ashcroft had some bearing on his case, he has not demonstrated that

the Supreme Court made Ashcroft retroactive to cases on collateral review.

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F.3d 378, 385 (5th Cir. 2003).

II. RECOMMENDATION

It is recommended that the government’s motion to dismiss Cox’s petition for writ of habeas

corpus under § 2241 be GRANTED and that the action be DISMISSED 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 August 2, 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

 

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Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 2, 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 July 11, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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