IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JERRY JOE TUBBLEVILLE §

§

Petitioner, §

§

VS. § NO. 3-05-CV-0940-K 

§ 

DAN JOSLIN, Warden, §

FCI-Seagoville §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Jerry Joe Tubbleville, an inmate at FCI-Seagoville, has filed an application for writ

of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should

be construed as a motion to correct, vacate, or set aside sentence and dismissed for lack of subject

matter jurisdiction.

I.

Petitioner was convicted by a federal jury in the Eastern District of Louisiana of various drug

and firearm offenses. Punishment was assessed at a total of 272 months confinement followed by

supervised release for a period of six years. His conviction and sentence were affirmed on direct

appeal. United States v. Tubbleville, No. 90-3269 (5th Cir. Nov. 7, 1990). Petitioner also filed two

motions to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255. The first motion was

denied on the merits. United States v. Tubbleville, No. 89-269 (E.D. La. Jun. 19, 1991). The second

motion was dismissed as successive. United States v. Tubbleville, No. 89-269 (E.D. La. Jul. 30,

1992). The Fifth Circuit recently denied leave to file a successive section 2255 motion. In re

Tubbleville, No. 05-30270 (5th Cir. Apr. 19, 2005).

 

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1

 In Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004), a majority of the Supreme

Court held that an enhanced sentence imposed by a judge under the Washington Sentencing Reform Act, which was

based on facts neither admitted by the defendant nor found by a jury, violated the Sixth Amendment to the United States

Constitution. Blakely, 124 S.Ct. at 2538. Booker extends that holding to invalidate the mandatory nature of the federal

sentencing guidelines. Booker, 125 S.Ct. at 755-56.

Undeterred, petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241. In his

sole ground for relief, petitioner contends that his sentence was enhanced by factors not alleged in

the indictment or determined by a jury as required by United States v. Booker, ___ U.S. ___, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005).1

 Process has been withheld pending a preliminary screening of

the habeas petition. 

II.

As a preliminary matter, the court must determine whether this claim is properly raised in

a section 2241 habeas petition. A collateral attack on a federal criminal conviction is generally

limited to a motion to correct, vacate or set aside sentence under 28 U.S.C. § 2255. Tolliver v.

Dobre, 211 F.3d 876, 877 (5th Cir. 2000). An application for writ of habeas corpus brought under

28 U.S.C. § 2241 is properly construed as a section 2255 motion if it seeks relief based on errors that

occurred at trial or sentencing. Id. at 877-88. However, habeas relief may be appropriate when the

remedy provided under section 2255 is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827,

830-31 (5th Cir. 2000), cert. denied, 122 S.Ct. 476 (2001). A petitioner must satisfy two factors to

show inadequacy. First, the claim must be "based on a retroactively applicable Supreme Court

decision which establishes that petitioner may have been convicted of a nonexistent offense." Id.

at 830, quoting Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Second, the

claim must have been "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.

Although petitioner's Booker argument was foreclosed by Fifth Circuit precedent at the time

 

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of his trial, appeal, and first section 2255 motion, such a claim does not implicate his conviction for

a substantive offense. Moreover, Booker does not apply retroactively to cases on collateral review.

Booker, 125 S.Ct. at 769 (Breyer, J.), citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,

716, 93 L.Ed.2d 649 (1987) (holding that decision applies "to all cases on direct review") (emphasis

added). See also In re Elwood, ___ F.3d ___, 2005 WL 976998 at *3 (5th Cir. Apr. 28, 2005) (citing

cases) (holding that Booker is not applicable to cases already final). That petitioner may be

precluded from raising this claim in a second or successive section 2255 motion does not make that

remedy "inadequate or ineffective." See Jeffers, 253 F.3d at 830; Jackson v. Joslin, 2005 WL

743056 at *1 (N.D. Tex. Mar. 31, 2005), rec. adopted, 2005 WL 1018027 (N.D. Tex. Apr. 28, 2005)

(Buchmeyer, J.). Under these circumstances, petitioner is precluded from challenging his conviction

under 28 U.S.C. § 2241.

III.

Having determined that this action must be brought under section 2255, the court now turns

to the issue of jurisdiction. A federal prisoner must seek habeas relief from the court which

sentenced him. 28 U.S.C. § 2255; Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000), citing Cox v.

Warden, Federal Detention Center, 911 F.2d 1111, 1113 n.2 (5th Cir. 1990). This filing

requirement is jurisdictional. United States v. Mares, 868 F.2d 151, 152 (5th Cir. 1989). Because

petitioner was convicted and sentenced in the Eastern District of Louisiana, jurisdiction is proper

only in that district.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be construed as a motion to correct,

vacate, or set aside sentence and dismissed without prejudice for lack of subject matter jurisdiction.

A copy of this report and recommendation shall be served on all parties in the manner

 

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provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: June 8, 2005.

 

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