Opinion
CIVIL ACTION NO. 1:02-CV-204-C
May 2, 2003
ORDER
Petitioner Javier Galvan-Castaneda, acting Pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on October 11, 2002, in the United States District Court for the Northern District of Texas, Abilene Division, and requested permission to proceed in forma pauperis. Petitioner argues that his state court conviction and sentence in Cause No. 16-803-A in the 142nd Judicial District Court of Midland County were unconstitutional because his counsel was ineffective, he was not present in the courtroom at the plea and sentencing or the revocation of his probation, and the state courts erroneously denied his request for habeas relief. Petitioner named the State of Texas as the Respondent, and the State of Texas has filed a Motion to Dismiss with Brief in Support and copies of Petitioner's state court records. Petitioner filed a response and objections*
The state court records show that Petitioner was indicted in Cause No. 16-803-A on June 13, 1990, for possession of a controlled substance, cocaine, in an amount less than 28 grams. On July 13, 1990, Petitioner pleaded guilty to the offense as charged in the indictment and was sentenced to ten (10) years' confinement in the Texas Department of Corrections the confinement was suspended, and Petitioner was placed on probation for eight (8) years. By Judgment and Order dated July 29, 1993, Petitioner's probation was revoked and he was sentenced to five (5) years' incarceration in the TDCJ-ID to run concurrently with his five-year sentence in Cause No. 18-948 in which Petitioner had pleaded guilty to the offense of felony driving while intoxicated on July 29, 1993.
The Texas Department of Corrections is now known as the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID").
Petitioner waived the right to appeal the revocation of his probation, but he did file a state habeas application in the trial court on February 6, 2002. He raised the same complaints in his state application that he now raises in this federal petition. The trial court made specific findings of fact and recommended that the application be denied. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on April 24, 2002.
Although Petitioner filed his petition pursuant to 28 U.S.C, § 2241, he states that he is challenging his state conviction and sentence in Cause No. 16-803-A. A "person who is in custody pursuant to the judgment of a State court" must file a petition for writ of habeas corpus to have the state court judgment set aside under 28 U.S.C. § 2254, See United States v. Clark, 284 F.3d 563, 565 (5th Cir. 2002) (noting that a federal court has jurisdiction over challenges to state court convictions under 28 U.S.C. § 2254). Respondent argues that this Court does not have jurisdiction to consider Petitioner's complaint because he is not in state custody. When Petitioner filed his petition, he was incarcerated in the Giles W. Dalby Correctional Facility in Garza County, Texas, pursuant to a judgment and sentence of the United States District Court for the Northern District of Texas, Dallas Division, in Criminal Action No. 3:00-CR-0099,
"The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are ` in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C § 2241(c)(3) (emphasis added in original). "[A] petitioner whose sentence has expired is no longer `in custody' for purposes of that conviction. . . ." Id. at 493-94. Respondent argues that the Commitment Inquiry attached to his Motion to Dismiss shows that Petitioner's sentence in Cause No. 16-803-A expired on April 6, 1998, and therefore Petitioner is no longer "in custody" for purposes of that conviction. The Commitment Inquiry shows that if Petitioner served the full sentence straight through from the date of sentencing, his sentence would expire on April 6, 1998, but the Commitment Inquiry does not state that Petitioner's sentence in Cause No. 16-803-A did in fact expire on April 6, 1998. Furthermore, the Commitment Inquiry clearly indicates that Petitioner was eligible for release to parole or mandatory supervision in Cause No. 16-803-A, but the Respondent does not address whether Petitioner was released to parole, his parole was revoked, or a revocation is pending. Petitioner has offered no evidence that he is in custody of the State of Texas, and it appears that the five-year sentence assessed in 1993 has expired. To the extent that Petitioner's sentence in Cause No, 16-803-A has expired and Petitioner is no longer in custody of the State of Texas, this Court is without jurisdiction to consider a challenge in a petition under 28 U.S.C. § 2254 to his conviction in Cause No. 16-803-A.
Even if Petitioner is still in custody pursuant to his conviction Cause No, 16-8 03-A, however, and this Court has jurisdiction to consider the petition under 28 U.S.C § 2254, such a petition would be time-barred. Under 28 U.S.C, § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA'"), a petitioner in custody pursuant to a state court conviction and sentence must file his federal petition on or before one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because both the original judgment and sentence and the revocation of Petitioner's probation became final well before April 24, 1996, the enactment date of the AEDPA, Petitioner had to file his federal habeas petition pursuant to 28 U.S.C. § 2254 on or before April 24, 1997, Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998).
Although Petitioner was convicted and sentenced in Cause No. 16-803-A in Midland County, which is located in the Western District of Texas, he is incarcerated in Garza County, Texas, which lies in the Northern District of Texas. Thus, this Court has jurisdiction to hear Petitioner's § 2254 petition. See 28 U.S.C. § 2241(d) (stating that a petition filed by a person in custody pursuant to a judgment and sentence of a state court "may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him").
Although the AEDPA also enacted a provision for tolling the one-year limitation period during the time "a properly filed application for State post-conviction or other collateral review . . . pending[,]" 28 U.S.C. § 2244(d)(2), Petitioner is not entitled to the tolling provision because he did not file his state application until well after the limitation period had expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that a state application filed after the expiration of the one-year limitation period does not toll the period). Furthermore, even though the AEDPA's statute of limitations may also be subject to equitable tolling. Petitioner does not argue that sufficiently "rare and exceptional circumstances" exist which would justify equitable tolling nor are any such circumstances apparent from the record. See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) ("The petitioner bears the burden of proof concerning equitable tolling, and must demonstrate `rare and exceptional circumstances' warranting application of the doctrine."). Thus, to the extent that this Court has jurisdiction over Petitioner's § 2254 challenge to Cause No. 16-803-A, the Court finds that the petition is time-barred.
If Petitioner is not "in custody" for purposes of his conviction in Cause No. 16-803-A, however, his complaint could be liberally construed as a challenge to his federal sentence in Criminal Action No. 3:00-CR-0099 because his state conviction in Cause No. 16-803-A was used to enhance his sentence. Cf. (quoting Daniels v. United States, 532 U.S. 374, 376 (2001) (holding that as a general rule, a petitioner may not challenge his federal sentence in a motion under § 2255 on the grounds that prior convictions were unconstitutionally obtained). Although Petitioner filed his complaint under § 2241, a challenge to a federal conviction and sentence is more properly brought in a motion under 28 U.S.C. § 2255. See Solsona v. Warden, F. C.I., 821 F.2d 1129, 1132 n. 1 (5th Cir. 1987) (approving the recharacterization of pro se prisoner complaints "according to the essence of the prisoner's claims, regardless of the label that the prisoner places on his complaint").
The United States Court of Appeals for the Fifth Circuit has determined that
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C, § 2255 are distinct mechanisms for seeking post-conviction relief A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is earned out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. A section 2255 motion, by contrast, `provides the primary means of collateral attack on a federal sentence.9 Relief under section 2255 is warranted for errors cognizable on collateral review that occurred `at or prior to sentencing.' A section 2255 motion must be filed in the sentencing court.Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) (quoting Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)) (internal citations omitted), See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (holding that "[28 U.S.C.] § 2255 is the primary means of attacking a federal sentence," but "[28 U.S.C.] § 2241 is used to attack the manner in which the sentence is executed"). A § 2241 petition "that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion" Pack v. Yusuff, 218 F.3d at 452.
Petitioner's claims regarding the validity of his state conviction are clearly challenges to events that occurred at or before his sentencing and such claims must be raised in a motion under § 2255 in the district court that sentenced him. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (finding that although petitioner characterized his claim as a challenge to the legality of his detention under § 2241, he was actually challenging the manner in which his sentence was determined and the claim thus had to be raised in a motion under § 2255). Because Petitioner was sentenced in criminal action no. 3:00-CR-0099 in the United States District Court for the Northern District of Texas, Dallas Division, this Court is without jurisdiction to hear Petitioner's claims or to construe his petition as a motion under § 2255. See Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 683 (5th Cir. 1997) ("Although a § 2241 petition attacking matters within the province of § 2255 should be construed as a § 2255 petition, . . . a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that."). Cf. Lee v. Wetzel, 244 F.3d 370, 374 (5th Cir. 2001) (holding that the "district of sentencing does not have jurisdiction to consider the merits of a § 2241 petition, unless the petitioner or his custodian is also located there").
Although Petitioner does not argue that he is entitled to file his petition under § 2241 because of the "savings clause" in § 2255, the Court has considered the argument and finds it meritless. See Kinder v. Purdy, 222 F.3d at 212 (finding that a petitioner who filed claims under § 2241 that were more properly pursued under § 2255, had to demonstrate that his claims fell within the "savings clause" of § 2255 to file his claims in the district where he was incarcerated).
Section 2255 contains a "savings clause" which provides that
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 appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C.A. § 2255 (Supp. 2000) (emphasis added), "Accordingly, a section 2241 petition that seeks to challenge a federal sentence or conviction — thereby effectively acting as a section 2255 motion — may be entertained when the petitioner establishes that the remedy provided for under section 2255 is inadequate or ineffective." Pack v. Yusuff, 218 F.3d at 452, This "savings clause" applies only to claims that are (1) "based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense" and (2) "foreclosed by circuit law at the time when the claim[s] should have been raised in the petitioner's trial, appeal, or first § 2255 motion." Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001), The Fifth Circuit has made clear that "§ 2241 is not a mere substitute for § 2255 and . . . the inadequacy or inefficacy requirement is stringent" Id. at 901, See Pack v. Yusuff, 218 F.3d at 452 (holding that the § 2255 remedy may be found ineffective or inadequate "only in extremely limited circumstances")* Furthermore, the petitioner bears the burden of proving the inadequacy or ineffectiveness of a § 2255 motion Id.; Pack v. Yusuff, 218 F.3d at 452. Petitioner has failed to demonstrate that his remedies under § 2255 were ineffective or inadequate. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (noting that neither a prior unsuccessful § 2255 motion nor the inability to meet the AEDPA's second or successive motion requirement renders § 2255 inadequate or ineffective). Moreover, the Court takes judicial notice of the fact that Petitioner filed a § 2255 motion challenging his conviction and sentence in Criminal Action No. 3:00-CR-0099 cm June 7, 2002, in the Dallas Division and it was assigned Civil Action No. 3:02-CV-1352. Sec Pack v. Yusuff, 218 F.3d at 453 ("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."). Accordingly, this Court is without jurisdiction to consider Petitioner's § 2255 claims in a petition filed under § 2241.
The docket sheet indicates that the District Court denied Petitioner's § 2255 motion in Civil Action No. 3:02-CV-1352 by Order dated November 14, 2002. Petitioner filed a notice of appeal and a request for a certificate of appealability on December 19, 2002. The appeal was assigned USCA No. 02-22400 by the United States Court of Appeals for the Fifth Circuit and is still pending before that Court.
For the reasons stated above, the Court finds that:
1. To the extent that Petitioner is not in custody of the State of Texas, this Court has no jurisdiction over a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 to challenge his conviction and sentence in Cause No. 16-803-A.
2. To the extent that Petitioner is in the custody of the State of Texas, his petition for writ habeas corpus challenging his conviction and sentence in Cause No. 16-803-A under 28 U.S.C. § 2254 is time-barred,
3. To the extent that Petitioner's claims can be construed to raise a challenge to Criminal Action No. 3:00-CR-0099 under 28 U.S.C. § 2255, the claims should be dismissed without prejudice for want of jurisdiction.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied
JUDGMENT
For the reasons stated in the Court's Order of even date,IT IS ORDERED, ADJUDGED, AND DECREED that the above-styled and numbered cause is dismissed with prejudice.