Opinion
No. 1:02-CV-030-C
June 7, 2002
ORDER
Petitioner Francisco Pena, acting pro se, filed a Petition for Writ of Habeas Corpus pursuant to " 28 U.S.C. § 2255 and 28 U.S.C. § 2241" on February 19, 2002, and attached copies of relevant records from his Criminal Case No. 98-00266-003 in the United States District Court for the Eastern District of Louisiana. The Respondents have not filed an answer, but the Court has considered this petition and is of the opinion that Pena has failed to show that he is entitled to relief. See 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.").
Pena was originally named, along with two co-defendants, in a four-count superseding indictment in criminal action no. 98-00266-003 in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Following his plea of guilty to the offense of possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841 (a)(1) (Count 2), Pena was sentenced on July 22, 1999, to 88 months' incarceration in the United States Bureau of Prisons five (5) years' supervised release, and a mandatory special assessment of $100.00.
Pena did not appeal his conviction and sentence, but he did file a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. file alleged that his offense level was improperly increased by two levels under § 2D1.1 (b)(1) of the United States Sentencing Guidelines ("U.S.S.G."), and that his counsel's failure to object to the two level enhancement deprived him of effective assistance of counsel. The sentencing court denied Pena's request for an evidentiary hearing and by Order dated December 13, 2000, denied his motion to vacate.
Pena filed the instant petition/motion on February 19, 2002, and raised the following grounds for review:
(1) The two level enhancement under U.S.S.G. § 2D1.2 (b)(1) for possession of a weapon was improper because there was insufficient or no evidence to support the enhancement.
(2) Pena's plea of guilty was involuntary and unknowing because he did not realize that he was pleading guilty to possessing the weapon and he only intended to plead guilty to possession of the drugs.
(3) Pena's counsel was constitutionally ineffective because he failed to object to the enhancement under § 2D1.2 (b)(1) and raise a proper defense.
Pena alleges that this Court has jurisdiction over his claims under 28 U.S.C. § 2241 and the "savings clause" of 28 U.S.C. § 2255. He argues that he is entitled to proceed wider the "savings clause" because he is actually innocent of possessing a weapon as alleged in paragraphs 14 and 20 of the Presentence Investigation Report.
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 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 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.
Pena's claims regarding the two-point increase in his offense level at sentencing, ineffective assistance of counsel at sentencing, and the intelligence and voluntariness of his guilty plea are clearly challenges to events that occurred at or before his sentencing. Although Pena is incarcerated in the Northern District of Texas, Abilene Division, his 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 Pena was sentenced in Criminal Case No. 98-00266-003 in the United States District Court for the Eastern District of Louisiana, New Orleans Division, this Court is without jurisdiction to hear his claims or 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").
Nevertheless, Pena argues that he is entitled to file a petition under § 2241 because of the "savings clause" in § 2255. 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 application 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.CA. § 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 (1) are "based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense" and (2) "[were] 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-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.
Pena has wholly failed to satisfy § 2255's stringent ineffectiveness requirement. in fact, he appears to be raising the same claims in the instant petition/motion that he raised in his prior § 2255 motion. 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). 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. Pack v. Yusuff, 218 F.3d at 453.
"Claims of actual innocence have been recognized by some courts as being possible bases for review under § 2241 when § 2255's restrictions foreclose subsequent petitions." Kinder v. Purdy, 222 F.3d at 213 (citing cases from other circuits). Although the Fifth Circuit has not determined the precise scope of the savings clause, the court has declined to find § 2255 "inadequate or ineffective" where a petitioner makes "no claim approaching actual innocence." See Kinder v. Purdy, 222 F.3d at 209 ("Where the petitioner's case has been viewed as falling within the savings clause, it was in part because the petitioner arguably was convicted for a nonexistent offense."(footnote omitted)); Pack v. Yusuff 218 F.3d at 448 (holding that without determining the precise scope of the "savings clause," a petitioner who made no claim approaching actual innocence and could not demonstrate that he had been denied an unobstructed shot at getting his sentence vacated did not demonstrate inadequacy or ineffectiveness of a § 2255 motion). Pena, however, fails to demonstrate that he is actually innocent of the offense for which he was convicted and sentenced or that his claim relies on a"retroactively applicable Supreme Court decision" which establishes that he was convicted of a nonexistent offense. See Williams v. Jeffers, 253 F.3d at 830 (holding that a petitioner failed to satisfy the first prong of the Reyes-Requena savings clause test where he did not demonstrate that a "retroactively applicable Supreme Court decision did not establish that the petitioner [was] `actually innocent'").
For the reasons stated above, the Court finds that:
1. Even though Pena 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. Pena 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 Pena's claims raised under 28 U.S.C. § 2255.
Accordingly, the Court finds that Pena's Petition for Writ of Habeas Corpus should be dismissed for want of jurisdiction.
All relief not expressly granted is denied and any pending motions are hereby denied.