IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOBBY JOE BURTON, #75272-079, )

Petitioner, )

)

v. ) 3:05-CV-1445-R

)

DAN JOSLIN, Warden, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

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

implementation thereof, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for a writ of habeas corpus brought by a federal prisoner

pursuant to 28 U.S.C. § 2241.

Parties: Petitioner is currently confined at the Federal Correction Institution (FCI) in

Seagoville, Texas. Respondent is the warden at FCI Seagoville. The court has not issued

process in this case, pending preliminary screening of the habeas petition.

Statement of Fact: Petitioner was convicted in the Southern District of Texas, Houston

Division, of conspiracy to distribute crack cocaine and aiding and abetting in the distribution of

crack cocaine in United States v. Burton, 4:97-CR-0036(03). (See Petition (Pet.) at 3). After a

remand from the United States Supreme Court on his petition for writ of certiorari based on

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the Fifth

Circuit Court of Appeals remanded Petitioner’s case to the district court for re-sentencing. (See

 

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1 Petitioner also filed a motion to recall the mandate, which the Fifth Circuit denied on

March 2, 2005. (Memorandum in Support at v).

2 In Booker, the Supreme Court extended to the Federal Sentencing Guidelines the

rule announced in Apprendi v. New Jersey, and reaffirmed in Blakely, that “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence exceeding the maximum

2

Memorandum in Support attached to Pet. at p. “v”). On March 30, 2001, the district court resentenced Petitioner to 360 months imprisonment, the statutory maximum, based on two

enhancements not approved by the jury verdict – i.e., an increase in the drug amount, and a

leadership role finding. (Id.). The Fifth Circuit Court of Appeals affirmed the conviction and

sentence. See United States v. Burton, 31 Fed.Appx. 152 (5th Cir., Dec 11, 2001) (unpublished

per curiam No. 01-20395), cert. denied, 535 U.S. 1010 (Apr. 15, 2002) (holding that although

defendant’s indictment did not allege a drug quantity or leadership role, he was not sentenced in

excess of the 30-year statutory maximum and as such, there was no Apprendi violation).

Prior to filing this action, Petitioner filed a motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255. See Burton v. United States, 4:03cv1981 (S.D. Tex., Houston

Div., filed May 29, 2003). Following the denial of the motion, the Fifth Circuit denied his

request for a certificate of appealability on October 21, 2004. (Pet. at 4). Petitioner, thereafter,

sought leave to file a successive § 2255 motion, which the Fifth Circuit Court of Appeals denied

on May 27, 2005. (Memorandum in Support at p. 1).1

 

In the present § 2241 action, Petitioner seeks to challenge the enhancement of his

sentence under Blakely v. Washington, 542 U.S 296, 124 S. Ct. 2531, 159 L.Ed.2d 403 (2004),

and United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Relying

on the savings clause of § 2255, he argues that he is actually innocent of the leadership role and

drug amount findings that were used to enhance his sentence.2

 

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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. See also

Padilla, 416 F.3d at 426 n. 1. The Booker Court also excised certain statutory provisions that

made the Guidelines mandatory, thereby rendering them advisory only. Booker, 125 S.Ct. at

756-57. 

3 The savings clause of § 2255 states as follows: 

An application for a writ of habeas corpus in behalf of a prisoner who is

authorized to apply for relief by motion pursuant to this section, shall not be

entertained if it appears that the applicant has failed to apply for relief, by motion,

to the court which sentenced him, or that such court has denied him relief, unless

it also appears that the remedy by motion is inadequate or ineffective to test the

legality of his detention. 

28 U.S.C. § 2255 ¶ 5 (emphasis added).

3

 Findings and Conclusions: In light of the Fifth Circuit recent denial of his request for

leave to file a successive § 2255 motion, Petitioner now attempts to raise the Booker/Blakely

issue by means of a § 2241 petition, While § 2241 is more typically used to challenge the

execution of a prisoner's sentence, a federal prisoner may bring a petition under § 2241 to

challenge the legality of his conviction or sentence if he can satisfy the mandates of the “savings

clause” of § 2255. Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005); ReyesRequena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001); see also Christopher v. Miles,

342 F.3d 378, 381 (5th Cir.), cert. denied, 540 U.S. 1085 (2003).3

Since Petitioner is incarcerated in the Northern District, this court has jurisdiction to

determine whether his claims are properly brought under § 2241 via the savings clause of §

2255. Padilla, 416 F.3d at 426 (determining that only the custodial court had jurisdiction to

determine whether petitioner could properly raise a claim under savings clause of § 2255) (citing

Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999)).

The petitioner “bears the burden of affirmatively showing that the § 2255 remedy is

 

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4 The Fifth Circuit has held in the context of a second or successive motion under §

2255 that the United States Supreme Court did not make Booker retroactively applicable to cases

on collateral review. See In re Elwood, 408 F.3d 211, 212-13 (5th Cir. 2005) (per curiam). 

While the Fifth Circuit has not yet addressed the applicability of Booker to a first § 2255 motion,

the circuits that have considered the question have determined that the Booker decision is not

retroactive to collateral review cases. See Guzman v. United States, 404 F.3d 139, 141-44 (2nd

4

inadequate or ineffective.” Padilla, 416 F.3d at 426. The savings clause of § 2255 applies to a

claim of actual innocence “(i) that is based on a retroactively applicable Supreme Court decision

which establishes that petitioner may have been convicted of a non-existent offense and (ii) that

was foreclosed by circuit law at the time when the claim should have been raised in the

petitioner’s trial, appeal, or first § 2255 motion.” Id. (quoting Reyes-Requena, 243 F.3d at 904). 

In Padilla, 416 F.3d at 425-26, the Fifth Circuit Court of Appeals held that a claim

challenging only the validity of a sentence under Blakely and Booker did not fall within the

savings clause of § 2255. The Court concluded that the Booker’s holding, like Apprendi, is “not

retroactively applicable to cases on collateral review.” Id. at 426 (citing Booker, 125 S. Ct. at

738; Wesson v. U.S. Penitentiary Beaumont, 305 F.3d 343, 347 (5th Cir. 2002)). It further

concluded that the petitioner’s claim, which challenged only the enhancement of his sentence for

possession of a weapon, does “not demonstrate that [the petitioner] was convicted of a nonexistent offense and [as a result] has no effect on whether the facts of his case would support his

conviction for the substantive offense.” Id. 

In this case, despite his arguments to the contrary, Petitioner is unable to satisfy the first

prong of the savings clause test. As in Padilla, his claim only challenges the enhancement of his

sentence under Blakely and Booker, and as such does not implicate his conviction for a

substantive criminal offense. Moreover, the Supreme Court has not made its decision in Booker

retroactively applicable to cases on collateral review. Padilla, 416 F.3d at 426.4 Accordingly,

 

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Cir. 2005), pet. for cert. filed, No. 05-5187 (Jul. 5, 2005); Humphress v. United States, 398 F.3d

855, 860-63 (6th Cir. 2005), pet . for cert. filed No. 05-5130 (May 17, 2005); Varela v. United

States, 400 F.3d 864, 866-868 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479,

480-81 (7th Cir), cert. denied, 125 S. Ct. 2559 (2005).

5

Petitioner is not entitled to invoke the savings clause of § 2255 and his petition should be

dismissed for lack of jurisdiction. See Christopher v. Miles, 342 F.3d 378, 385 (dismissing for

lack of jurisdiction claim which failed to satisfy § 2255 savings clause).

RECOMMENDATION:

Because Petitioner has not made the showing required to invoke the savings clause of §

2255 as to the claim presented in his habeas corpus petition, it is recommended that the petition

under 28 U.S.C. § 2241 be dismissed for want of jurisdiction.

A copy of this recommendation will be mailed to Petitioner Bobby Joe Burton, Jr., BOP

# 75272-079, FCI Seagoville, P.O. Box 9000, Seagoville, Texas 75159.

Signed September 12, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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