IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JOHNNY IRONS, §

Petitioner, §

§

VS. § Civil Action No. 4:05-CV-0400-Y

§

DAN JOSLIN, Warden, §

Federal Correctional Institution–Seagoville, § 

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions, and recommendation of the United States Magistrate

Judge, as evidenced by his signature hereto, 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 Johnny Irons, federal prisoner # 26283-077, is confined in the Federal Correctional

Institution-Seagoville. 

Respondent Dan Joslin is the Warden of the Federal Correctional Institution-Seagoville. No

process has been issued on Respondent in this case.

C. Factual Background

On June 24, 1995, Irons was found guilty by a jury of conspiracy to distribute cocaine, and,

 

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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, 542

U.S. 296 (2004): 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 excised certain statutory provisions that made the Guidelines mandatory, thereby rendering the

Guidelines advisory only. Id. at 756-57. 

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on November 21, 1995, he was sentenced to a term of 324 months’ incarceration. See CM/ECF,

Criminal Docket for Case # 4:95-CR-36-11, docket entries for June 24, 1995 & November 21, 1995.

Irons appealed his conviction and sentence, but the Fifth Circuit Court of Appeals affirmed the trial

court’s judgment on February 18, 1997. Id., entry for February 18, 1997. Thereafter, Irons pursued

postconviction collateral relief via a § 2255 motion to vacate to no avail. Id., entries for May 18,

1998 & November 24, 1999. On June 16, 2005, Irons filed this petition under § 2241.

D. Legal Discussion

Irons challenges his conviction and/or sentence on the basis of the Supreme Court’s decisions

in Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738, 756

(2004).1

This Court has the duty to assure that it has jurisdiction over the matters before it and may

raise a jurisdictional issue sua sponte at any time. See Burge v. Parish of St. Tammany, 187 F.3d

452, 465-66 (5th Cir. 1999); MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990).

Federal Rule of Civil Procedure 12(h)(3) requires that federal courts dismiss an action “[w]henever

it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject

matter.” FED. R. CIV. P. 12(h)(3).

Typically, § 2241 is used to challenge the manner in which a sentence is executed. See

 

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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), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 17, 2005) (No. 05-5130); 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

(continued...)

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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,

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.

Irons cannot satisfy the first prong of the Reyes-Requena test. He fails to cite legal authority

or present a factual basis demonstrating that he was convicted of a nonexistent offense. Further, the

Fifth Circuit has recently held that Booker does not apply retroactively to cases on collateral review.

See Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005).2 See also In re Elwood, 408 F.3d

 

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(...continued)

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).

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211, 213 (5th Cir. 2005) (holding Booker does not apply retroactively on collateral review for

purposes of successive motion to vacate under § 2255). Bound by the law of our circuit, Irons

cannot meet the retroactivity requirement. As such, Irons is precluded from challenging the legality

of his conviction or sentence under § 2241. Thus, the court is without jurisdiction to consider the

petition. See Padilla, 416 F.3d at 427; Christopher v. Miles, 342 F.3d 378, 379, 385 (5th Cir. ), cert.

denied, 540 U.S. 1085 (2003).

II. RECOMMENDATION

It is therefore recommended that Irons’s petition for writ of habeas corpus be dismissed for

lack 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 September 19, 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

 

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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

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 19, 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 August 29, 2005.

 /s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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