Opinion
Civil Action No. 6:02-CV-088-C
October 23, 2002
ORDER
Petitioner Clay Garcia-Marquez, acting pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on October 18, 2002. Although Respondent has not filed a responsive pleading, the Court has reviewed Petitioner's pleadings and finds that this Court is without jurisdiction to consider Petitioner's federal habeas petition. See Wottlin v. Fleming, 136 F.3d 1032, 1034 (5th Cir. 1998) (affirming a denial of relief under § 2241 without ordering an answer from the respondent). See also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.").
Petitioner signed and dated his petition on October 15, 2002; therefore, it is deemed to be filed as of October 15, 2002. See Sporville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding that for purposes of determining the applicability of the AEDPA's statute of limitations, a federal petition is deemed to be filed on the date it is placed in the prison mail system).
Petitioner was originally convicted in criminal action no. MO-01-CR-06 in the United States District Court for the Western District of Texas, Midland Division, for the offense of illegally reentering the United States after being deported or removed pursuant to a conviction for an aggravated felony in violation of 18 U.S.C. § 1326 (b)(2) pursuant to a plea of guilty. On September 4, 2001, Petitioner was sentenced to 57 months' incarceration in the Bureau of Prisons, to be followed by a three-year term of supervised release. Petitioner did not appeal his conviction and sentence, but on November 27, 2001, he filed a Motion for Modification of Sentence pursuant to 18 U.S.C. § 3582 (c) and § IBI.10 of the United States Sentencing Guidelines. The district court denied the motion and the United States Court of Appeals for the Fifth Circuit affirmed the denial and the conviction on June 21, 2002. Petitioner filed the instant petition "pursuant to 28 U.S.C. § 2241" complaining that the indictment in criminal no. MO-01-CR-06 failed to charge him with an offense because it did not allege that Petitioner "acted with any specific intent." There is nothing to indicate that Petitioner has previously filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
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 carried 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.' 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 Cit. 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"). The Fifth Circuit Court of Appeals has approved 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." Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n. 1 (5th Cir. 1987). Thus, 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.
To the extent that Petitioner is challenging the indictment in criminal no. MO-01-CR-06, this Court finds that he is challenging events which 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 Cit. 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. MO-01-CR-06 in the United States District Court for the Western District of Texas, Midland 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 a petition under § 2241 because of the "savings clause" in § 2255, the Court finds that he cannot demonstrate that he is entitled to file his claims under the savings clause. 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
[a]n 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 a claim that (1) is "based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense" and (2) "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." Reyes-Requerza 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 clearly cannot demonstrate that his complaint about the indictment was "foreclosed by circuit law at a time when the claim should have been raised in (his] trial, appeal, or first § 2255 motion," or that a retroactively applicable Supreme Court decision demonstrates that he is innocent of the offense.
For the reasons stated above, the Court finds that:
1. Even though Petitioner has filed his petition "under 28 U.S.C. § 2241," he raises claims that are more properly raised in a motion under 28 U.S.C. § 2255.
2. Petitioner has failed to demonstrate that 28 U.S.C. § 2255 provides an ineffective or inadequate remedy for his post-conviction complaints.
3. This Court is without jurisdiction to consider Petitioner's claims raised under 28 U.S.C. § 2255.
Accordingly, the Court finds that Petitioner's Petition for Writ of Habeas Corpus should be dismissed for want of jurisdiction.