1

Petitioner is a federal inmate currently serving a 210-month sentence after pleading guilty to possession with

intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C.

§ 2. See United States v. Johnny Lee Reed, 7:97-CR-0018-X(01). Prior to filing the instant petition, Petitioner filed a

motion to vacate sentence pursuant to 28 U.S.C. § 2255. The district court denied his § 2255 motion, see Reed v. United

States, 7:99-CV-0245 (N.D. Tex., Wichita Falls Div., Dec. 8, 1999), and the Fifth Circuit subsequently denied his request

for a certificate of appealability. 

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHNNY LEE REED, # 31011-077, §

§

Petitioner, §

§ 

vs. § Civil Action No. 3:06-CV-0083-L

§

DAN JOSLIN, Warden, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

Petitioner Johnny Lee Reed (“Petitioner”) has filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241.1

 Pursuant to 28 U.S.C. § 636(b), and an order of the court in

implementation thereof, this action was referred to the United States magistrate judge for proposed

findings, conclusions and recommendation. On February 28, 2006, the Findings, Conclusions and

Recommendation of the United States magistrate judge were filed, to which Petitioner filed

objections. 

The magistrate judge found that Petitioner’s petition for writ of habeas corpus brought under

28 U.S.C. § 2241 should be dismissed for want of jurisdiction, as Petitioner had failed to satisfy the

“savings clause” of § 2255, under which a federal prisoner may bring a § 2241 petition to challenge

the legality of his conviction or sentence only if he can show that the “§ 2255 remedy is inadequate

or ineffective.” See Report at 3 (citing Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir.

 

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2

See AEDPA, Pub. L. 104-132, 110 Stat. 1214 (1996), codified at 28 U.S.C. § 2254(d). 

Memorandum Opinion and Order – Page 2

2005)). Finding that Petitioner’s § 2241 petition was a challenge to the enhancement of his sentence

under United States v. Booker, 534 U.S. 220 (2005), and not to the underlying conviction, the

magistrate concluded that Petitioner had not satisfied the “savings clause.” See id. at 4 (citing

Padilla, 416 F.3d at 426) (holding that claim challenging validity of sentence under Blakely and

Booker does not fall within § 2255 savings clause). With regard to Petitioner’s assertion that his

inability to meet the second or successive requirements for filing another § 2255 petition under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)2

 satisfied the savings clause, the

magistrate judge concluded that this argument similarly should be rejected, since a “prior

unsuccessful § 2255 motion, or the inability to meet AEDPA’s ‘second or successive’ requirement,

does not make § 2255 inadequate or ineffective.” Id. (quoting Tolliver v. Dobre, 211 F.3d 876, 878

(5th Cir. 2000)). 

In his objections, Petitioner challenges the magistrate judge’s finding that he did not satisfy

§ 2255's savings clause, arguing that his sentence was enhanced by the sentencing judge in violation

of the Sixth Amendment, since he never pled guilty to the facts leading to the enhancement and a

jury never found him guilty beyond a reasonable doubt as to those facts the judge used to enhance

his sentence. See Objections at 3 (“The trial court in this case thus violated the Sixth Amendment

by convicting petitioner of a greater offense than the one covered by his guilty plea; this court has

jurisdiction to correct its mistakes in the ends of justice.”). Having carefully considered Petitioner’s

Objections, the court determines that they should be overruled. A collateral attack on a sentence

is normally limited to § 2255. A petitioner may challenge his sentence under § 2241 where he can

satisfy the “savings clause” of § 2255, and demonstrate that his § 2255 remedy is “inadequate or

 

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Memorandum Opinion and Order – Page 3

ineffective.” See Padilla, 416 F.3d at 426. As the magistrate judge correctly found, Petitioner has

not shown that his § 2255 remedy is “inadequate or ineffective.” See supra. Moreover, nothing in

Petitioner’s Objections leads this court to conclude otherwise. Petitioner’s Objections further

confirm to this court that Petitioner’s§ 2241 petition is an improper attempt to circumvent the

limitations on filing successive § 2255 motion. 

In short, having carefully considered the magistrate judge’s findings and conclusions,

Petitioner’s objections, the record and the applicable law, the court determines that magistrate

judge’s findings are correct, and accordingly accepts them as those of the court. Petitioner’s

objections are overruled. As Petitioner has failed to satisfy the “savings clause” of § 2255, the

court dismisses Petitioner’s § 2241 petition without prejudice for lack of jurisdiction. 

Final judgment will issue by separate document. 

It is so ordered this 16th day of March, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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