Opinion
No. 4:01-CV-0376-E
December 10, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus pursuant to Title 28 of the United State Code, Section 2241.
B. PARTIES
Petitioner Amel Lueth, Reg. No. 18765-013, is a federal prisoner who is incarcerated in the Federal Medical Center in Fort Worth, Texas.
The Respondent is W.L. Fleming, Warden of the FMC, at Fort Worth, Texas.
C. PROCEDURAL HISTORY
Lueth was convicted on July 31, 1985, in the United States District Court for the Southern District of Iowa, Case No. 85-CR-00008, of knowingly engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 (Count I); several counts of conspiracy to distribute, possession with intent to distribute, or distribution of marijuana and cocaine; conspiracy to defraud the United States in violation of 18 U.S.C. § 371; and income tax evasion and filing false income tax returns in violation of 26 U.S.C. § 7201, 7206(1). Lueth was sentenced to twenty years on Count I, and received sentences ranging from one year to fifteen years on the remaining counts. All sentences were imposed to run concurrently with twenty years without parole as the maximum sentence imposed. The court also imposed a special parole term of three years. Lueth's convictions were affirmed on direct appeal. See Lueth v. United States, 807 F.2d 719 (8th Cir. 1986). Lueth pursued post-conviction relief in the convicting court, filing three motions to vacate and one amended motion to vacate pursuant to 28 U.S.C. § 2255. The first motion was dismissed without prejudice on December 11, 1987, and the remaining motions were denied.
The Court takes judicial notice of the records in the United States District Court for the Southern District of Iowa in United States v. Lueth, No. 85-CR-00008. See also a copy of a portion of the docket sheet in the underlying criminal case attached to the instant petition as Exhibit "A."
Lueth raised the following claims on direct appeal: (1) the court erred in refusing to suppress the evidence, because the search warrant was based upon an affidavit that had not established probable cause and was deficient under Franks v. Delaware, 438 U.S. 154 (1978); (2) the trial judge court improperly abandoned his neutral role and injected himself into the trial as prosecutor; and (3) the government had not made a submissible case against him on the charge that he engaged in a continuing criminal enterprise under Count I of the indictment. See Lueth v. United States, 807 F.2d 719 (8th Cir. 1986).
On January 17, 1997, Lueth was released from confinement to the Northern District of Texas on mandatory release and was required to remain under the jurisdiction of the United States Parole Commission, as if on parole, until November 30, 2004, his sentence discharge date. See Lueth v. United States, No. 4:00-CV-1525-E. Lueth, however, continued to violate the conditions of his release, and his parole was ultimately revoked. On September 5, 2000, Lueth filed in this Court a petition for writ of mandamus and/or petition for writ of habeas corpus, Lueth v. United States, 4:00- CV-1525-B, alleging that he had not received a timely parole revocation hearing, and he requested relief in the form of a parole revocation hearing or immediate release from the parole violator warrant. In pleadings filed subsequent to the initial petition for writ of mandamus, Lueth also alleged that the revocation of his parole was unlawful, and his parole effective date had been unlawfully retarded. By order entered on April 20, 2001, Lueth's petition for writ of mandamus and/or petition for writ of habeas corpus was denied, except as to Lueth's substantive challenge to his parole revocation, which was dismissed without prejudice. Final Judgment was entered on the same date. See Lueth v. United States, No. 00-C V-1525-E (N.D.Tex. April 20, 2001). On May 3, 2001, Lueth filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging as unlawful his CCE conviction and sentence pursuant thereto as unlawful. In response, the government has filed a motion to dismiss. Although Lueth sought and was granted an extension of time in which to respond, he has failed to do so. Shortly after the filing of the instant petition, Lueth was released from confinement.
D. ISSUE
Lueth now argues that his conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 is unlawful pursuant to the principles established in Richardson v. United States, 526 U.S. 813 (1999).
In brief Richardson held that a jury must be instructed to reach a unanimous verdict on each of the specific violations that comprise the alleged continuing series of violations charged in the indictment. Richardson, 526 U.S. 813, 821(1999).
E. DISCUSSION
The petitioner's attack on his conviction and/or sentence is not cognizable in a petition for writ of habeas corpus brought pursuant to § 2241. A challenge to a conviction or sentence must be presented in a motion to vacate brought in the court of conviction pursuant to 28 U.S.C. § 2255. Because Lueth's claim involves a challenge to his conviction and/or sentence, it must be asserted in a § 2255 motion, and the only court with jurisdiction to determine such a motion is the trial and sentencing court, i.e., the United States District Court for the Southern District of Iowa. See also Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997), citing, Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987). Thus, the Petitioner may not assert the claim raised in the instant proceeding in a petition pursuant to 28 U.S.C. § 2241, and therefore, the subject petition under § 2241 must be dismissed with prejudice.
Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997), citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) (attacks on the underlying conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) (when alleged errors occur at or prior to sentencing, the appropriate remedy is under § 2255, not 28 U.S.C. § 2241).
Since Lueth was incarcerated in the Fort Worth Division of the Northern District of Texas at the time he filed the instant petition, this Court is the appropriate division to make the determination whether Lueth may proceed under 28 U.S.C. § 2241. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999), citing, United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
This Court recognizes that there is an exception to the general rule that allows a petitioner to file an attack on his conviction or sentence in the district of incarceration pursuant to Section 2241, if the petitioner can show that the remedy provided for under Section 2255 is "inadequate or ineffective to test the legality of the detention." 28 U.S.C. § 2255. The courts have held that under certain circumstances, a petitioner maybe able to resort to the writ of habeas corpus under 28 U.S.C. § 2241 where the petitioner had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his sentence or conviction resulting from an intervening change in substantive law, or where preventing the federal prisoner from filing would raise a serious question as to § 2255's constitutionality. See In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998); In re Dorsainvil, 119 F.3d 245 (3rd Cir. 1997); Treistman v. United States, 124 F.3d 361 (2nd Cir. 1997). The circumstances under which a petitioner may avail himself of § 2255's savings clause and pursue a collateral attack byway of § 2241 are very limited, however. See Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999). The Fifth Circuit has recently held that a Richardson claim is not the type of defect that can support a § 2241 claim under the savings clause of § 2255. Jeffers v. Chandler, 253 F.3d 827 (5th Cir. 2001). Lueth has, therefore, not made the showing required to invoke the savings clause of § 2255. Id. See also Pack v. Yusuff 218 F.3d 448, 452-54 (5th Cir. 2000).
The fifth paragraph of Section 2255, the "savings clause," 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 also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
In a recent opinion, the Fifth Circuit Court of Appeals set forth the factors that must be satisfied for a petitioner to file a § 2241 petition pursuant to § 2255's savings clause. See Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001). First, the petitioner's claim must be "based on a retroactively applicable Supreme Court decision that establishes that the petitioner may have been convicted of a nonexistent offense." Id. at 904. 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. See also Jeffers v. Chandler, 253 F.3d 827 (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.
The Fifth Circuit stated that "although the lack of an instruction requiring a unanimous jury verdict as to each of the predicate offenses underlying the CCE violation may have been a defect in Jeffers''s trial, it is not the sort of defect that can support a claim under the savings clause of § 2255." Jeffers, 253 F.3d at 830.
Thus, the proper procedural vehicle to assert the Richardson claim is by way of a motion to vacate pursuant to 28 U.S.C. § 2255 in the convicting and sentencing court. This Court notes, however, that it does not appear that Lueth will be successful if he were to now return to the convicting court to raise the instant issue, because his motion might be deemed time-barred. See United States v. Lopez, 248 F.3d 427 (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). Richardson was decided on June 1, 1999. Apparently, as pointed out by the government in its response, Lueth is simply attempting to circumvent the AEDPA' s requirements regarding the filing of timely motions to vacate by filing the instant petition pursuant to § 2241 and seeking relief in this Court. Lueth cannot use § 2241 to escape the restrictions on untimely § 2255 motions; the § 2255's savings clause does not exist to free a prisoner of the effects of his failure to raise an available claim earlier. See Wofford, 177 F.3d 1236. The fact that a § 2255 motion would now be time-barred does not make the remedy inadequate or ineffective. Treistman, 124 F.3d at 376. See also Dorsainvil, 119 F.3d at 251. Lueth is, therefore, not entitled to relief in this habeas corpus proceeding.
In United States v. Lopez, 248 F.3d 427 (5th Cir. 2001), Lopez filed a § 2255 motion attacking his conviction for engaging in a continuing criminal enterprise. He argued that the Supreme Court's decision in Richardson v. United States, 526 U.S. 813 (1999), handed down after his sentence became final, should be retroactively applied to his case and that his sentence was therefore void. Lopez, 248 F.3d at 429. The Fifth Circuit concluded that Richardson was a "new rule," Lopez, 248 F.3d at 431, and that it is generally retroactively applicable on collateral review. Id. at 432. The Court further held that Teague was inapplicable to the retroactivity analysis because Richardson interpreted the statutory phrase "continuing series of violations" and was thus substantive rather than procedural. Id.
With regard to the timeliness issue, the Court in Lopez stated that the limitations period runs for one year from "the date on which the right asserted was initially recognized by the Supreme Court." Id. at 432.
RECOMMENDATION
It is recommended that the government's motion to dismiss be granted, and this petition for writ of habeas corpus be dismissed with prejudice.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS. CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until January 2, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS. CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until January 2, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.