128 U.S.C.A. § 2255(West Supp. 2005)(“An application for writ of habeas

corpus in behalf of a prisoner who is authorized to apply for relief by [2255

motion] . . . shall not be entertained . . .unless it also appears that the

remedy by motion is inadequate or ineffective to test the legality of his

detention.”)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CASSEL DIXON, §

Petitioner, §

 § 

VS. § CIVIL ACTION NO.4:05-CV-181-Y

 §

COLE JETER, Warden, §

FMC-Fort Worth, §

Respondent. § 

 ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS

In this action brought by petitioner Cassel Dixon under 28

U.S.C. § 2241, the Court has made an independent review of the

following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on

July 14, 2005; and

3. The petitioner's written objections to the proposed

findings, conclusions, and recommendation of the United

States magistrate judge filed on July 15, 2005.

The Court, after de novo review, concludes that Dixon’s

objections must be overruled, that the motion to dismiss should be

granted, and that the petition for writ of habeas corpus under 28

U.S.C. § 2241 should be dismissed for lack of jurisdiction, for the

reasons stated in the magistrate judge's findings and conclusions.

The Court of Appeals for the Fifth Circuit has determined

that, before a petitioner may pursue relief through 28 U.S.C. §

2241 under the language of the 28 U.S.C. § 2255 savings clause,1 he

must show that:

 

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2

Christopher v. Miles, 342 F.3d 378, 382 (5th Cir.), cert. den’d,

Christopher v. Sisneros, 540 U.S. 1085 (2003), citing Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001) and Jeffers v. Chandler, 253 F.3d 827,

830 (5th Cir. 2001).

3United States v. Booker, 125 S.Ct. 738 (2005).

4See generally Padilla, 2005 WL 1595291, at *3 (“Padilla’s claim . . . does

not demonstrate that Padilla was convicted of a nonexistent offense and has no

effect on whether the facts of his case would support his conviction for the

substantive offense”); Wesson v. U.S. Penitentiary Beaumont, Texas, 305 F.3d 343,

346 (5th Cir. 2002)(noting that for a § 2241 petitioner raising an Apprendi claim

to satisfy the savings clause, he had to show that the retroactively applicable

Supreme Court decision “establishes that he may have been convicted of a

nonexistent offense”); King v. Jeter, No. 4:04-CV-600-D, 2005 WL 195446, at *1

(N.D.Tex. Jan. 27, 2005)(“Booker, like Blakely, does not implicate petitioner’s

conviction for a substantive offense”).

2

(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.2

Dixon, through counsel, challenges the magistrate judge’s reliance

on Padilla v. United States, No.04-50567, 2005 WL 1595291 (5th Cir.

July 8, 2005) in analyzing whether the § 2255 savings clause is

satisfied. But Dixon, like the petitioner in that case, challenges

enhancements to his sentence, he does not contend that the Booker3

analysis demonstrates that his conviction for the substantive

offense of conspiracy to possess a controlled substance has been

decriminalized.4 For this and the other reasons noted in the

magistrate judge’s report, Dixon has not made the showing required

to satisfy the savings clause. 

 It is therefore ORDERED that the findings, conclusions, and

recommendation of the magistrate judge should be, and are hereby,

ADOPTED.

It is further ORDERED that respondent Jeter’s June 27, 2005,

motion to dismiss [docket no. 15] be, and is hereby, GRANTED.

 

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5Christopher, 342 F.3d at 379, 385 (noting that since petitioner could not

satisfy the savings clause, district court’s order denying petition was vacated,

and case remanded with order to dismiss for lack of jurisdiction).

3

It is further ORDERED that Cassel Dixon’s petition for writ of

habeas corpus under 28 U.S.C. § 2241 be, and is hereby, DISMISSED

for lack of jurisdiction.5 

SIGNED July 20, 2005.

 

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ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS/DISMISS/NO EXHAUST -- Page 2

dwk-mu\k\d\means\Blair.146 4

 

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