Opinion
NO. 3-04-CV-1435-G.
August 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Frederick L. Mitchell, 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 as successive.
I.
Petitioner pled guilty to federal drug trafficking charges and was sentenced to 168 months confinement. His conviction and sentence were affirmed on direct appeal. United States v. Mitchell, No. 01-11134 (5th Cir. May 7, 2002). Petitioner also filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255 and an application for writ of habeas corpus under 28 U.S.C. § 2241. The section 2255 motion was denied on the merits. United States v. Mitchell, No. 4-02-CV-0840-A (N.D. Tex. Oct. 3, 2002), appeal dism'd, No. 03-10025 (5th Cir. May 9, 2003). The habeas application was construed as a successive section 2255 motion and dismissed for want of jurisdiction. Mitchell v. Wendt, No. 4-03-CV-1306-A (N.D. Tex.Nov. 7, 2003), aff'd, No. 03-11312 (5th Cir. Jun. 15, 2004).
Undeterred, petitioner now seeks section 2241 relief for a second time on the ground that the federal district court lacked subject matter jurisdiction over the alleged offense. Process has been withheld pending a 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.
In an attempt to show that section 2255 is an inadequate or ineffective remedy, petitioner argues that he was convicted of a non-existent offense which deprived the district court of subject matter jurisdiction. Even if petitioner is able to satisfy the first prong of the Reyes-Requena savings clause test, he has not shown that this claim was foreclosed by circuit law at the time of his appeal or first section 2255 motion. Rather, petitioner maintains that he did not raise this claim in an earlier proceeding because he is "a layman of the law." ( See Hab. Pet. at 6, ¶ 13). Ignorance of the law does not render section 2255 inadequate or ineffective. See Garrett v. Snyder, 211 F.3d 1269 (Table), 2000 WL 571926 at *2 (6th Cir. May 4, 2000), citing United States v. Baker, 197 F.3d 211, 218-19 (6th Cir. 1999) (accepting ignorance-of-the-law excuse would encourage and reward indifference to that law). Nor is petitioner entitled to challenge his conviction in a section 2241 proceeding merely because he may be precluded from filing a second or successive section 2255 motion. See Jeffers, 253 F.3d at 830. Under these circumstances, the court must construe the habeas petition as a motion to correct, vacate, or set aside sentence.
Petitioner appears to argue that his drug trafficking offense was not sufficiently related to interstate commerce so as to give rise to federal subject matter jurisdiction. ( See Hab. Pet.at 5, ¶ 12). Not surprisingly, petitioner fails to cite any controlling authority, let alone authority based on a retroactively applicable Supreme Court decision, to support this claim.
III.
The Antiterrorism and Effective Death Penalty Act of 1996 limits the circumstances under which a federal prisoner may file a second or successive motion for post-conviction relief. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). A defendant must show that the successive motion is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255. This determination must be made by a three-judge panel of the court of appeals before defendant can file another motion in district court. Id. §§ 2241 2255.
The Fifth Circuit has not issued an order authorizing the district court to consider this successive motion. Petitioner must obtain such an order before another motion for post-conviction relief is filed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be construed as a motion to correct, vacate, or set aside sentence and dismissed pending authorization from the court of appeals to file a successive motion in district court.