IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EDWARD LIONEL BLAKE, #79357-079 )

Petitioner, )

)

v. ) 3:05-CV-2519-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 did not issue process

in this case pending preliminary screening.

Statement of Fact: Following his plea of not guilty, a jury convicted Petitioner of

conspiracy to possess with intent to distribute cocaine base and aiding and abetting in violation

of 21 U.S.C. §§ 846 and 841 in the United States District Court for the Southern District of

Texas, Houston Division. United States v. Edward Lionel Blake, 4:98cr0215(01). Petitioner

was sentenced to an enhanced sentence of 360 months imprisonment on December 4, 1998. Id.

 

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1 In Shepard, the Supreme Court addressed the extent to which information about

prior convictions based on guilty pleas may be considered by a later sentencing court when

determining the applicability of ACCA, 18 U.S.C. § 924(e), to convictions obtained under 18

U.S.C. § 922(g)(1) (felon in possession of a firearm). 125 S.Ct. 1254, 1257. The ACCA

provides a sentence enhancement for a defendant who is convicted under 18 U.S.C. § 922(g)(1)

(unlawful possession of a firearm by a convicted felon) and who has three prior convictions for

specified types of offenses. Taylor v. United States, 495 U.S. 575, 577-578, 110 S.Ct. 2143,

2147, 109 L.Ed.2d 607 (1990). The Supreme Court limited the evidence a court may rely on to

enhance punishment to (1) the terms of the charging documents; (2) a statement of the factual

basis for the earlier charges shown by a transcript of the plea colloquy; (3) a written plea

agreement presented to the earlier court, or (4) a record of comparable findings of fact adopted

by the defendant before entering the plea. Shepard, 125 S.Ct. at 1259-1261, 1263.

2

On September 23, 1999, the Fifth Circuit affirmed the judgment of conviction. See No. 98-

21081. Thereafter, Petitioner filed two motions to vacate, set aside or correct sentence pursuant

to 28 U.S.C. § 2255. See Blake v. United States, 4:00cv3725 (S.D. Tex., Houston Div.), and

Blake v. United States, 4:05cv0391 (S.D. Tex., Houston Div.). The district court dismissed with

prejudice the first § 2255 motion, and dismissed without prejudice for lack of jurisdiction the

second § 2255 motion.

In the present § 2241 action, Petitioner challenges the enhancement of his sentence under

the Armed Career Criminal Act (ACCA). (Petition at 4). He asserts the sentencing court

improperly classified his two burglary offenses as “violent felonies,” contrary to the Supreme

Court’s recent holding in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (2005). (Id. at

4-5). Relying on the savings clause of § 2241, he alleges he is actually and factually innocent of

the enhanced sentence. (Id. at 5-7). He further alleges that his counsel was ineffective before

and during sentencing in failing to object to the enhancement of his sentence. (Id. at 7).1

 Findings and Conclusions: Although Petitioner denominates his current petition as one

for relief under 28 U.S.C. § 2241, the petition clearly seeks to attack the validity of the federal

 

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2 Since Petitioner is incarcerated in the Dallas Division of the Northern District of

Texas, this Court is the appropriate division to make the determination whether Petitioner may

proceed under 28 U.S.C. § 2241. See Padilla v. United States, 416 F.3d 424, 426 (5th Cir.

2005); Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir.1999).

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sentence that he is currently serving.2

 Shepard did not change the substantive law with respect to

the elements of the offense for which Petitioner was convicted. See 125 S.Ct. at 1257. Like

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and United States v. Booker, 543

U.S. 220, 125 S.Ct 738 (2005), success on his Shepard claim or his ineffective assistance of

counsel claim premised on Shepard would affect only his sentence, not the criminality of his

conduct. See Tracy v. Williamson, 152 F. Appx. 234, 235 (3rd Cir. 2005) (prisoner's challenges

to judicial fact-finding at his sentencing under Shepard and to constitutionality of ACCA

properly should have been brought in a § 2255 motion to vacate); Morton v. United States, 2005

WL 3116085, *2 (W.D.N.C. 2005) (Petitioner's Shepard claim, unlike a Bailey claim, does not

attack the criminality of his conduct but rather the length of his sentence); see also Padilla v.

United States, 416 F.3d 424, 425 (5th Cir. 2005) (per curiam) (holding that petitioner’s Booker

claims did not attack his conviction and that his claims challenged only the validity of his

sentence); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000) (challenge to manner in which

prisoner's sentence was initially determined, on theory that career offender guideline was not

properly applied to his drug conspiracy conviction, had to be brought in a § 2255 motion).

A collateral attack on a federal criminal conviction is generally limited to a motion to

vacate, set aside or correct a sentence under 28 U.S.C. § 2255. Jeffers v. Chandler, 253 F.3d

827, 830 (5th Cir. 2001); Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden,

Fed. Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990). A § 2241 habeas petition is

 

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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. 

(Emphasis added).

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properly construed as a § 2255 motion if it seeks relief based on errors that occurred at trial or

sentencing. Tolliver, 211 F.3d at 877-88. Habeas relief under § 2241 may be appropriate only

when the remedy provided under § 2255 is “inadequate or ineffective” – the so-called “savings

clause,” i.e. “unless it also appears that the remedy by [§ 2255 motion] is inadequate or

ineffective to test the legality of [movant’s] detention.” Jeffers, 253 F.3d at 830. “A § 2241

petition is not, however, a substitute for a motion under § 2255, and the burden of coming

forward with evidence to show the inadequacy or ineffectiveness of a motion under § 2255 rests

squarely on the petitioner.” Id.3 

Petitioner has not provided any valid reason why the § 2255's remedy is either inadequate

or ineffective. The Fifth Circuit has long held that “[a] prior unsuccessful § 2255 motion, or the

inability to meet the AEDPA’s second or successive requirement, does not make § 2255

inadequate or ineffective.” Jeffers, 253 F.3d at 830; see also Toliver, 211 F.3d at 878. 

Nor can Petitioner show that his claims fall within the savings clause. A prisoner seeking

to invoke the savings clause of § 2255 must demonstrate a claim of actual innocence

(i) that is based on a retroactively applicable Supreme Court decision which

establishes that the petitioner may have been convicted of a nonexistent 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.

Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005) (per curiam) (quoting Reyes-Requena

 

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v. United States, 243 F.3d 893, 904 (5th Cir. 2001)). The first prong of the Reyes-Requena's

savings-clause test requires that a retroactively applicable Supreme Court decision establish that

the petitioner is "actually innocent." See Reyes-Requena, 243 F.3d at 903-04. In explaining the

requirement, the Fifth Circuit stated that "the core idea is that the petitioner may have been

imprisoned for conduct that was not prohibited by law." Id. at 903. 

Petitioner cannot utilize the savings clause. He has not alleged, let alone shown, that he

is actually innocent of the crime of conviction. All of his arguments are premised on being

“innocent” of a “crime of violence,” the basis for the career offender sentencing enhancement. 

He claims that he can satisfy the actual innocence prong of Reyes-Requena (also described as

being convicted of a non-existent offense) because he was sentenced as a career offender based

on “crimes of violence” that were not in fact “crimes of violence.” Such a claim is not the type

of actual innocence claim contemplated by the savings clause. Kinder v. Purdy, 222 F.3d 209,

213-14 (5th Cir. 2000) (petitioner's argument that his underlying conviction could not support

application of the career offender provisions is not the same as an argument that “he is innocent

of the crime for which he was convicted,” and the former, even if correct, would not entitle him

to proceed under § 2255's savings clause); Morton v. United States, 2005 WL 3116085, *2

(W.D.N.C.) (W.D.N.C.,2005) (Petitioner's Shepard claim, unlike a Bailey claim, does not attack

the criminality of his conduct but rather the length of his sentence). 

Moreover, the procedural rule set out in Shepard is not applicable on collateral review. 

Tracy v. Williamson, No. 05-2659, 2005 WL 2812805, at *1 (3rd Cir. 2005) (holding Shepard is

not retroactively applicable on collateral review); Duong. v. United Sates, 2005 WL 3312630

(S.D. Tex Dec. 6, 2005) (findings, conclusions and recommendation); McCleskey v. United

 

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4 Petitioner’s reliance on Ross v. United States, 289 F.3d 677 (11th Cir. 2002), is

inapposite. (Pet. at 3). Ross held that the Supreme Court’s decision in Richardson v. United

States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), in which the Court concluded that

“a jury has to agree unanimously about which specific violations make up the ‘continuing series

of violations' ” of a Continuing Criminal Enterprise charge, was retroactively applicable to cases

on collateral review. Ross did not address the applicability of Shepard to cases on collateral

review. 

Similarly, the Supreme Court’s decision in Dodd v. United States, ___ U.S. ___, 125

S.Ct. 2478 (2005), is wholly inapplicable to this case. (Pet. at 3). In Dodd, the Supreme Court

addressed the timeliness of a § 2255 motion raising a Richardson claim. 

6

States, No. EP-05-CA-0272-PRM, 2005 WL 1958407, at *6 (W.D. Tex., Aug. 15, 2005).

Consequently, Petitioner's Shepard claims may not be brought under the savings clause of §

2241.4

Even if the § 2241 petition were liberally construed as a motion filed pursuant to 28

U.S.C. § 2255, this Court would be without jurisdiction to consider the same since a § 2255

motion must be filed in the federal court in which the habeas petitioner was convicted and

sentenced. Escamilla v. Warden USP Beaumont, 31 F.Appx. 155 (5th Cir. 2001); Ojo v.

Immigration and Naturalization Service, 106 F.3d 680, 683 (5th Cir. 1997); United States v.

Weathersby, 958 F.2d 65, 66 (5th Cir. 1992). Further, Petitioner has filed two previous § 2255

motions and has not obtained prior authorization from the Fifth Circuit Court of Appeals to file a

successive motion under § 2255. See United States v. Key, 205 F.3d 773, 774-75 (5th Cir.

2000); and 28 U.S.C. § 2255.

 

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RECOMMENDATION:

For the foregoing reasons it is recommended that the habeas corpus petition pursuant to

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

It is further recommended that the § 2241 petition, construed as a motion under 28 U.S.C.

§ 2255, be dismissed for lack of jurisdiction.

 A copy of this recommendation will be mailed to Petitioner.

Signed this 23rd day of February, 2006. 

____________________________________

WM. F. SANDERSON, JR.

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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