1

 The background section is taken from the petition filed in this action, the docket sheet related to petitioner’s federal

criminal action in the Eastern District, and relevant documents filed in that criminal action and related actions filed

pursuant to 28 U.S.C. § 2255. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOE THOMAS TUCKER, ID # 03393-078, )

Petitioner, )

vs. ) No. 3:06-CV-0189-H (BH)

) ECF

DAN JOSLIN, ) Referred to U.S. Magistrate Judge

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, subject cause has previously been referred to the United States Magistrate Judge. The

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

I. BACKGROUND1

Petitioner is a federal prisoner incarcerated in FCI-Seagoville who challenges his federal

conviction in United States v. Tucker, No. 6:91-CR-030 (E.D. Tex.), pursuant to 28 U.S.C. § 2241.

Petitioner names Dan Joslin, Warden of the Seagoville prison facility, as respondent.

On May 16, 1991, a grand jury in the Eastern District of Texas indicted petitioner for various

violations of federal law, including a violation of 18 U.S.C. § 924(c). On December 19, 1991, petitioner was found guilty of violating § 924(c) and other charged offenses. The trial court sentenced

him to 352 months imprisonment.

The Fifth Circuit affirmed his convictions. See United States v. Sparks, 2 F.3d 574, 577-78

(5th Cir. 1993). The Eastern District of Texas subsequently denied or dismissed three prior actions

 

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that were either filed pursuant to 28 U.S.C. § 2255 or construed as being filed pursuant to § 2255.

See Tucker v. United States, No. 6:05-CV-0495 (E.D. Tex. filed Dec. 27, 2005) (dismissing action on

Jan. 25, 2006); Tucker v. United States, No. 6:96-CV-0393 (E.D. Tex. filed May 3, 1996) (dismissing

action on Nov. 14, 1997); Tucker v. United States, No. 6:95-CV-0703 (E.D. Tex. filed Sept. 29, 1995)

(originally filed on May 4, 1995, as a motion to dismiss statutory criminal case, and dismissed on June

7, 1996). 

On January 30, 2006, this Court received the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 wherein petitioner claims that he was convicted and sentenced in violation of the Constitution because he is actually innocent of the § 924(c)(1) offense in light of Bailey

v. United States, 516 U.S. 137 (1995) (decided December 6, 1995), and because the trial court lacked

jurisdiction due to a defective indictment. The Court has not yet ordered an answer to the § 2241

petition.

II. JURISDICTION UNDER § 2241

Section 2241(a) provides district courts the power to grant a writ of habeas corpus to remedy

a petitioner’s restraint of liberty in violation of the constitution, treaties, or laws of the United States.

United States v. Hayman, 342 U.S. 205, 211-12 & n.11 (1952). “Habeas corpus relief is extraordinary

and ‘is reserved for transgressions of constitutional rights and for a narrow range of injuries that

could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage

of justice.’” Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955

F.2d 367, 368 (5th Cir. 1992)). While § 2255 provides the primary means of “collaterally attacking

a federal sentence” and is the appropriate remedy for “errors that occurred at or prior to the

sentencing,” § 2241 is the proper procedural vehicle in which to raise an attack on “the manner in

 

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which a sentence is executed.” Padilla v. United States, 416 F.3d 424, 425-426 (5th Cir. 2005) (internal quotations and citations omitted). The remedy afforded under § 2241 is “no different” from the

scope of remedy afforded under § 2255. Kinder, 222 F.3d at 214. However, a petition filed under

§ 2241 “is not . . . a substitute for a motion under § 2255.” See Jeffers v. Chandler, 253 F.3d 827, 830

(5th Cir. 2001).

A § 2241 petition that seeks to challenge the validity of a federal sentence, i.e., by attacking

errors that occurred at trial or sentencing, must either be dismissed or construed as a § 2255 motion.

See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). However, if a petitioner establishes that the

remedy provided under § 2255 is inadequate or ineffective to test the legality of his or her detention,

a § 2241 petition that attacks custody resulting from a federally imposed sentence may be entertained under the “savings clause” of § 2255. Padilla, 416 F.3d at 426. That clause provides: 

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. “[T]he burden of coming forward with evidence to show the inadequacy or

ineffectiveness of a motion under § 2255 rests squarely on the petitioner.” Jeffers, 253 F.3d at 830.

The case law is clear that “the inadequacy or inefficacy requirement is stringent.” Reyes-Requena v.

United States, 243 F.3d 893, 901 (5th Cir. 2001). If a petitioner who has filed a § 2241 petition fails

to show § 2255 to be inadequate or ineffective, then the Court lacks jurisdiction to consider the §

2241 petition. See Christopher v. Miles, 342 F.3d 378, 379 (5th Cir. 2003) (remanding a case for dismissal for lack of jurisdiction when the petitioner failed to show § 2255 inadequate or ineffective).

 

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Utilization of § 2241 instead of § 2255 is limited to very specific situations, and a petitioner

seeking relief under the savings clause of § 2255 must demonstrate three things: 

(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.

Id. at 382; accord Padilla, 416 F.3d at 426. “Of course, this test will operate in the context of [the

Fifth Circuit’s] existing jurisprudence regarding what is not sufficient to obtain access to the savings

clause.” Reyes-Requena, 243 F.3d at 904 (citing Pack as reflective of such jurisprudence). 

One may not utilize § 2241 merely to avoid procedural hurdles presented under § 2255, such

as the one-year statute of limitations or restriction on filing second or successive motions to vacate.

See Pack, 218 F.3d at 453 (holding that neither a limitations bar nor successiveness make § 2255

ineffective or inadequate); Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (holding that

successiveness does not make § 2255 ineffective or inadequate). As the Fifth Circuit noted in Pack,

[t]o hold otherwise would flout Congress’s obvious intent to give meaning to these

procedural requirements. A ruling that the section 2255 remedy was inadequate or

ineffective, such that a petitioner could invoke section 2241, simply because the petitioner’s prior section 2255 motion was unsuccessful, or barred, or because he could

not file another motion, would render those procedural requirements a nullity and

defy Congress’s clear attempt to limit successive habeas petitions.

218 F.3d at 453. 

In this case, petitioner makes no attempt to show that § 2255 is ineffective or inadequate.

He merely argues that he is actually innocent based upon Bailey and that a defective indictment

deprived the trial court of jurisdiction. However, although a Bailey claim may be brought pursuant

to § 2241 in the district of incarceration in some circumstances under the savings clause of § 2255,

 

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see Reyes-Requena, 243 F.3d at 900-06, such claim is not properly brought pursuant to § 2241 in all

circumstances, see Zuniga-Hernandez v. Childress, No. 05-40985, 2006 WL 3253621, at *2 (5th Cir.

Nov. 9, 2006) (finding that a prisoner convicted of using and carrying a firearm may not pursue a

Bailey claim pursuant to the savings clause); Martin v. Wendt, 176 Fed. App’x 479, 479 (5th Cir.

2006) (holding that a Bailey claim may not be raised in a § 2241 action when the claim was not

foreclosed when he sought § 2255 relief); Barrera-Diaz v. Pettiford, 116 Fed. App’x 474, 474 (5th Cir.

2004) (holding that a § 2241 petition “is not permitted by the ‘savings clause’ of 28 U.S.C. § 2255

because Barrera was able to assert his Bailey claim in a prior motion”); United States v. Rocha, Nos.

3:89-CR-0095-G, 3:00-CV-2456-G, 2001 WL 1076137, at *5-7 (N.D. Tex. July 20, 2001) (order

accepting findings, conclusions, and recommendation of magistrate judge) (finding that resort to §

2241 under the savings clause is not appropriate even when raising a Bailey claim in a successive §

2255 motion, unless the asserted claim would have been timely filed under § 2255), aff’d on other

grounds, 48 Fed. App’x 481 (5th Cir. 2002) (declining to decide the interplay between the § 2255

limitations issue and reliance on § 2241 for a Bailey claim). Furthermore, a federal prisoner may not

rely on the savings clause for claims of a defective indictment without showing that “a retroactively

applicable Supreme Court decision . . . establishes that the petitioner may have been convicted of

a nonexistent offense.” Zuniga-Hernandez v. Childress, No. 05-40985, 2006 WL 3253621, at *2 (5th

Cir. Nov. 9, 2006) (quoting Reyes-Requena, 243 F.3d at 904). 

Petitioner has not carried his burden to show § 2255 ineffective or inadequate so as to bring

his claims pursuant to § 2241. With respect to his defective indictment claim, he merely argues that

the indictment is defective because it fails to charge an offense under USSG § 3B1.1(a). He

identifies no retroactively applicable Supreme Court decision that places such claim within the

 

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 Although this Court has access to some documents related to petitioner’s criminal action in the Eastern District of

Texas by virtue of scanning technology, it lacks access to all relevant documents. Nevertheless, the burden lies with the

petitioner to show that § 2255 is inadequate and ineffective so as to properly pursue his claims pursuant to § 2241, and

he has not carried that burden.

3

 Paragraph 6 of “28 U.S.C. § 2255 establishes a ‘1-year period of limitation’ within which a federal prisoner may file a

motion to vacate, set aside, or correct his sentence under that section.” Dodd v. United States, 545 U.S. 353, 354 (2005).

That paragraph provides:

A 1-year period of limitation shall apply to a motion under this section. The 

limitation period shall run from the latest of – 

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action

in violation of the Constitution or laws of the United States is removed, if the movant was prevented

from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme Court and made retroactively applicable to cases on

collateral review; or 

(4) the date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence. 

Although “[i]n most cases, the operative date from which the limitation period is measured will be the one identified in

¶ 6(1) . . . later filings are permitted where subparagraphs (2)-(4) apply.” Dodd, 545 U.S. at 357. In this instance, ¶ 6(3)

provides the latest possible commencement date.

6

savings clause of § 2255. Consequently, he may not pursue such claim through the savings clause

of § 2255.

With respect to his Bailey claim, petitioner has provided nothing to show that he was only

convicted of using a firearm.2

 Because Bailey “did not address the carrying facet of § 924(c)”, United

States v. Muscarello, 106 F.3d 636, 638 (5th Cir. 1997), aff’d, 524 U.S. 125 (1998), a “challenged

conviction may stand if the ‘carry’ prong of § 924(c) is satisfied”, United States v. Sanders, 157 F.3d

302, 304 (5th Cir. 1998). A Bailey claim provides no basis for a § 2241 petition when the petitioner

was convicted of both using and carrying a firearm. See Zuniga-Hernandez v. Childress, No. 05-40985,

2006 WL 3253621, at *2 (5th Cir. Nov. 9, 2006). 

Furthermore, had petitioner pursued his Bailey claim in a § 2255 motion, rather than the

instant § 2241 petition, such claim would certainly be untimely under ¶ 6(3) of § 2255.3

 To timely

 

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present a Bailey claim under ¶ 6(3), one must file the motion “within one-year of the Bailey decision.” United States v. Rocha, Nos. 3:89-CR-0095-G, 3:00-CV-2456-G, 2001 WL 1076137, at *3

(N.D. Tex. July 20, 2001) (order accepting findings, conclusions, and recommendation of magistrate

judge); accord Dodd v. United States, 545 U.S. 353, 359-60 (2005) (holding that, when ¶ 6(3) of §

2255 commences the limitations period, federal prisoners “have one year from th[e] Court’s decision

within which to file his § 2255 motion”); United States v. Lopez, 248 F.3d 427, 433 (5th Cir. 2001)

(holding that a § 2255 motion asserting claims under Richardson v. United States, 526 U.S. 813

(1999) must be asserted within one year of that decision). Although such period is extended in this

case to April 24, 1997, due to a one-year grace period following the enactment of AEDPA, see Rocha,

2001 WL 1076137, at *3, petitioner filed the instant petition well after that grace period expired.

In addition, although the Court may equitably toll the limitations period, see id. at *4-5, petitioner

has demonstrated no basis for such tolling. His claim of actual innocence “does not constitute a ‘rare

and exceptional’ circumstance, given that many prisoners maintain they are innocent.” See Felder

v. Johnson, 204 F.3d 168, 171 & n.8 (5th Cir. 2000). As briefly discussed previously, moreover, petitioner has presented nothing to convincingly suggest that the jury would not have convicted him of

carrying a firearm in violation of § 924(c)(1). 

Because petitioner’s Bailey claim would be untimely had petitioner presented it in a § 2255

motion, petitioner may not rely on the savings clause of § 2255 to assert the claim in a § 2241

petition. See Rocha, 2001 WL 1076137, at *6-7. In Rocha, this Court set out its rationale for such

position:

Reyes-Requena does not eviscerate the jurisprudence reflected in Pack. See 243 F.3d

at 904. It simply provides a remedy under § 2241, when the federal prisoner had no

reasonable opportunity to correct a fundamental defect in his conviction. 

 

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 In Ashley v. United States, 266 F.3d 671 (7th Cir. 2001), the Seventh Circuit overruled Montenegro v. United States, 248

F.3d 585 (7th Cir. 2001). The Ashley opinion, however, does nothing to detract from the proposition for which Rocha

cited Montenegro. 

8

It seems inappropriate to find § 2255 ineffective or inadequate, when the

movant has allowed the one-year statute of limitations of § 2255 to expire. Jurisprudence of the Fifth Circuit “regarding § 2255’s savings clause makes clear that §

2241 is not a mere substitute for § 2255 and that the inadequacy or inefficacy

requirement is stringent.” See Reyes-Requena, 243 F.3d at 901. That one is procedurally barred from proceeding under § 2255 is insufficient “to demonstrate that section

2255 relief is inadequate or ineffective.” Pack, 218 F.3d at 452. It seems incongruous

with Congressional intent to permit what would be an untimely motion under § 2255

to be properly filed under § 2241. See Montenegro v. United States, ___ F.3d ___, ___,

No. 00-1301, 2001 WL 378391, at *__ (7th Cir. Apr. 16, 2001); Kinder v. Purdy, 222

F.3d 209, 213 (5th Cir. 2000), cert. denied, 121 S. Ct. 894 (2001). Congress did not

intend the savings clause of § 2255 to save prisoners from their own delays and procrastination. Montenegro, ___ F.3d at ___, 2001 WL 378391, at *___. The ReyesRequena court specifically noted, furthermore, that “[s]ection 2255 is the primary

collateral relief mechanism for federal prisoners, and the savings clause cannot create

a detour around § 2255 such that § 2255 is rendered a nullity.” 243 F.3d at 901 n.19.

Were the Court to disregard the untimeliness of the instant motion and find

§ 2255 ineffective or inadequate, movants who have filed a previous motion to

vacate would stand in a better position than those who have filed no such previous

motion. Had Rocha not filed his earlier petition the instant motion would not have

implicated the savings clause and the instant petition would undoubtedly be barred

by limitations. Congress did not intend to place successive filers in a better situation

than first time filers. That is why Congress set forth two narrow exceptions for allowing a second or successive motion to vacate. 

Rocha had a meaningful opportunity to present his claims in a successive

motion before the one-year statutory period of limitations expired. In such circumstances, § 2255 appears adequate and effective to address his claims. To find § 2255

inadequate or ineffective when the movant has not complied with the one-year limitations period, would undermine the Congressional intent behind the AEDPA. The

failure to timely seek relief appears the result of Rocha’s own doing and not due to

any inadequacy in § 2255. 

Id.4

 

The Rocha rationale finds further support in Dodd v. United States, 545 U.S. 353 (2005),

wherein the Supreme Court stated:

 

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We recognize that the statute of limitations in ¶ 6(3) makes it difficult for applicants

filing second or successive § 2255 motions to obtain relief. The limitation period in

¶ 6(3) applies to “all motions” under § 2255, initial motions as well as second or

successive ones. Section 2255, ¶ 8(2), narrowly restricts an applicant's ability to file

a second or successive motion. An applicant may file a second or successive motion

only in limited circumstances, such as where he seeks to take advantage of “a new

rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” § 2255, ¶ 8(2). Dodd points out

that this Court rarely decides that a new rule is retroactively applicable within one

year of initially recognizing that right. Thus, because of the interplay between ¶¶

8(2) and 6(3), an applicant who files a second or successive motion seeking to take

advantage of a new rule of constitutional law will be time barred except in the rare

case in which this Court announces a new rule of constitutional law and makes it

retroactive within one year.

545 U.S. at 359. Despite the “potential for harsh results in some cases”, the Supreme Court majority

declined to “rewrite the statue” and did not suggest that such untimeliness would permit a prisoner

to invoke the § 2255 savings clause. See id. at 359-60. The dissent likewise did not suggest application of the savings clause in such circumstances. See id. at 370 (Steven, J. dissenting). Although

the Supreme Court did not have a specific savings clause issue before it, its lack of discussion of the

potential application of the savings clause to avoid the noted harsh results is enlightening. 

For all of these reasons, petitioner has failed to carry his burden to show § 2255 is ineffective

or inadequate so that he can pursue his claims under § 2241. In light of such failure, the Court must

either construe the action as arising under § 2255 or dismiss it. See Pack, 218 F.3d at 452. Because

petitioner was convicted in the Eastern District of Texas, this Court has no jurisdiction over a § 2255

motion filed by him. See Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997) (holding that “the only court

with jurisdiction to hear [a motion to vacate] is the court that sentenced [petitioner]”). Therefore,

the Court may not construe the action as one under § 2255, and this action should be dismissed for

 

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lack of jurisdiction. See Christopher, 342 F.3d at 379 (remanding a case for dismissal for lack of

jurisdiction when the petitioner failed to show § 2255 inadequate or ineffective). 

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the Court DISMISS petitioner’s application for habeas corpus relief brought pursuant to 28 U.S.C. § 2241 for lack of jurisdiction.

SIGNED this 14th day of November, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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