Opinion
Civil Action No. 4:04-CV-334-Y.
May 28, 2004
ORDER OF SUMMARY DISMISSAL
Came on to be considered the above-styled and numbered cause wherein petitioner Johnny Wayne Wade has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Wade is presently housed at the Bureau of Prisons' FMC — Fort Worth facility in Fort Worth, Texas. On preliminary consideration of the petition by this Court pursuant to 28 U.S.C. § 2243, it appears that petitioner Wade is not entitled to relief. From the face of the petition, it is apparent that Wade has filed challenges to alleged errors that were assertable during or before sentencing and, as such, this Court is without jurisdiction to hear the action. Accordingly, the petition for writ of habeas corpus under 28 U.S.C. § 2241 must be dismissed with prejudice. Wade previously sought relief under 28 U.S.C. § 2241 asserting challenges to his conviction and sentence, and that action was dismissed with prejudice in Wade v. Fleming, 4:02-CV-830-Y. A copy of that order of dismissal is attached hereto.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (West 1994) (emphasis added).
Wade again asserts challenges to the jurisdiction and authority of the United States District Court for the Eastern District of Texas, Tyler division, and the authority of the United States attorney for that district to prosecute him. Wade is imprisoned for a 1999 judgment of conviction and aggregate 84-month sentence of imprisonment imposed upon him in cause number 6:97-CR-035(1) in the United States District Court for the Eastern District of Texas for the offense of conspiracy to commit arson in violation of 18 U.S.C. § 844(n), and multiple counts of the offense of arson in violation of 18 U.S.C. § 844(i). Although Wade initially filed a notice of appeal, he subsequently dismissed and waived his right to appeal. In August of this year, Wade filed a motion for reduction of sentence, which was addressed under Federal Rule of Criminal Procedure 35(b) and denied in an order filed on September 20. After this Court dismissed Wade's prior petition under 28 U.S.C. § 2241, Wade filed an appeal, but the court of appeals affirmed this Court's dismissal in a judgment entered on the docket of this Court as mandate on May 20, 2003. Wade's instant petition for relief under 28 U.S.C. § 2241 must be dismissed for the same reasons enunciated in the prior case.
The Court takes judicial notice of the docket sheet records of the United States District Court for the Eastern District of Texas in United States v. Wade, 6:97-CR-035.
Id.
It is therefore ORDERED that petitioner Johnny Wayne Wade's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 be, and is hereby, DISMISSED WITH PREJUDICE.
EXHIBIT
JOHNNY WAYNE WADE, Petitioner,VS. CIVIL ACTION NO. 4:02-CV-839-Y
L.E. FLEMING, Warden, FMC-Fort Worth, Respondent.
ORDER OF SUMMARY DISMISSAL
Came on to be considered the above-styled and numbered cause wherein petitioner Johnny Wayne Wade has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Wade is presently housed at the Bureau of Prisons' FMC-Fort Worth facility in Fort Worth, Texas. On preliminary consideration of the petition by this Court pursuant to 28 U.S.C. § 2243, it appears that petitioner Wade is not entitled to relief. From the face of the petition, it is apparent that Wade has filed challenges to his conviction and sentence based upon alleged errors that occurred during or before sentencing, and as such, this Court is without jurisdiction to hear the action, such that the petition for writ of habeas corpus under 28 U.S.C. § 2241 must be dismissed with prejudice.
Because Wade has now paid the $5.00 filing fee, his request to proceed in forma pauperis [docket no. 2] is DENIED as moot.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (West 1994) (emphasis added).
Wade challenges the 1999 judgment of conviction and aggregate 84-month sentence of imprisonment imposed upon him in cause number 6:97-CR-035(1) in the United States District Court for the Eastern District of Texas for the offense of conspiracy to commit arson in violation of 18 U.S.C. § 844(n), and multiple counts of the offense of arson in violation of 18 U.S.C. § 844(i). (Pet.; Judgment in criminal cause number 6:97CR035-01 attached as Exhibit A.) Although Wade initially filed a notice of appeal, he subsequently dismissed and waived his right to appeal. In August of this year, Wade filed a motion for reduction of sentence, which was addressed under Federal Rule of Criminal Procedure 35(b) and denied in an order filed on September 20.
The Court takes judicial notice of the docket sheet records of the United States District Court for the Eastern District of Texas in United States v. Wade, 6:97-CR-035.
Id.
By this action, Wade raises the following challenges to his convictions: (1) he was subjected to cruel and unusual punishment in that he was physically beaten while being detained in the Smith County jail; (2) his children were forced to see him after he was beaten; (3) the U.S. Marshal's office coordinated the unwarranted attack upon him, as proved by an audio-tape recording; (4) he was not provided care for a problem with his vision for over a year while housed at FMC-Fort Worth; (5) the doctors and staff at FMC-Fort Worth, with the knowledge of the warden, were negligent, careless, reckless, and overworked; (6) the doctors at FMC-Fort Worth failed to remedy his eye problem and failed to follow the recommendation of an outside specialist; (7) the negligence of both FMC-Fort Worth and the Smith County jail resulted in total blindness in his left eye; (8) the Smith County jail and FMC-Fort Worth deprived him of his constitutional rights by not allowing him treatment for his medical needs; (9) the Smith County jail and FMC-Fort Worth violated his right to due process by engaging in conduct so grossly incompetent as to amount to intentional mistreatment of him and deliberate indifference to his medical needs; (10) the sentencing guidelines were wrongly applied to him; (11) the court refused to address his challenge to the validity of the enactment of Title 18 of the United States Code; (12) agencies that Petitioner alleges have authority to act only on behalf of the president took action against him; (13) and (14) the court did not have personal jurisdiction over Petitioner; (15) his rights under Federal Rules of Criminal Procedure 26 and 54 were denied; (16) the court failed to prove territorial jurisdiction; (17) he has been denied a copy of his pre-sentence report; (18) the United States Attorney's Office and the Bureau of Alcohol, Tobacco, and Firearms failed to inform the grand jury of their allegedly limited powers; and (19) the United States attorney failed to show the nature and cause of the crimes with which he was charged.
The bulk of these claims involve alleged errors that occurred before or at sentencing. A motion filed under 28 U.S.C. § 2255, not § 2241, is the proper method of challenging errors that occurred during or before sentencing. Because Wade challenges errors that allegedly occurred before and during his conviction and sentencing, they must be asserted in a § 2255 motion, and the only court with jurisdiction to determine such a motion is the court that sentenced him, i.e., the United States District Court for the Eastern District of Texas. Thus, petitioner Wade may not assert the claims raised in the instant case in a petition under 28 U.S.C. § 2241, and as such, the claims in the instant petition under § 2241 should be summarily dismissed with prejudice.
Wade does not seek civil relief in this action; however, to the extent that he asserts claims that could also form the basis of a suit for civil relief for alleged violations of constitutional or federal rights, Wade is advised that such claims must be pursued in a separate civil action. See generally Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) (upholding order by district court construing state prisoner's habeas-corpus petition as a civil complaint and noting a `bright line rule' that if a favorable determination will not automatically entitle the prisoner to accelerated release, the case should be construed as a § 1983 civil suit); see also Boyce v. Ashcroft, 251 F.3d 911, 914 ("Prisoners who raise constitutional challenges to other prison decisions-including transfers to administrative segregation, exclusion from prison programs, or suspension of privileges, e.g., conditions of confinement, must proceed under section 1983 or Bivens" and not under habeas statute), judgment vacated as moot, 268 F.3d 953 (10th Cir. 2001). Wade is advised that the Prison Litigation Reform Act (PLRA) requires that a prisoner bringing a civil action is required to "pay the full [$150.00] amount of a filing fee," and that the fee be collected from his inmate trust account. See 28 U.S.C.A. §§ 1915(b)(1) and (2) (West Supp. 2002).
See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); see also 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(c)"); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) ("appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing").
See Ojo, 106 F.3d at 682, citing Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987); see also 28 U.S.C.A. § 2255 (West Supp. 2002). Section 2255 provides in relevant part as follows:
A prisoner in [federal] custody . . . claiming that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(Emphasis added.)
As Wade is incarcerated in this division, this Court had to determine whether he 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).
Although a § 2241 petition attacking matters within the province of § 2255 could be construed as a § 2255 motion, "a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that." Ojo, 106 F.3d at 683, citing Solsona, 821 F.2d at 1131-32.
Wade claims, however, that he is entitled to seek § 2241 relief under the § 2255 "savings clause." Section 2255 provides that a prisoner may file a writ of habeas corpus if a remedy by § 2255 motion is "inadequate or ineffective to test the legality of his detention." The failure to timely file a motion under 28 U.S.C. § 2255, however, does not make that remedy ineffective or inadequate.
28 U.S.C.A. § 2255 (West Supp. 2002).
See Reyes v. Requena, 243 F.3d 893, 902 and 906 n. 34 (5th Cir. 2001) (noting that § 2241 is not a substitute for § 2255, and citing with approval cases from other circuits that hold that a statute-of-limitations bar to filing a § 2255 motion, without more, is insufficient to invoke the savings clause; and, finding that Reyes did meet the test, distinguishing the fact that he did not seek 2241 relief merely because limitations expired on his § 2255 motion); see also Adkins v. Johnson, No. 3:01-CV-0057-R, 2001 WL 803741, at *3 n. 2 (N.D.Tex. July 13, 2001) ("A petitioner cannot bring a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 relying upon the . . . savings clause in 28 U.S.C. § 2255 merely because the statute of limitations has expired.")
In order to successfully invoke the savings clause, Wade must meet the requirements of the actual-innocence test set out in Reyes-Resquena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). To do so, Wade must show that his claims are
See Wesson v. U.S. Penitentiary Beaumont, Tx., 305 F.2d 343, 347 (5th Cir. 2002).
based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that 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-Requena, 243 F.3d at 904; see also Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001) (clarifying that the first factor of this test requires that "a retroactively applicable Supreme Court decision establish that the petitioner is `actually innocent.'").
The burden of presenting evidence to make the showing of the inadequacy of § 2255 "`rests squarely on the petitioner.'" Wade has not made a showing as to either prong, and the Court determines that the claims he has presented fail to invoke either prong. To the extent that Wade also makes a general claim that the failure to allow him to proceed under 28 U.S.C. § 2241 amounts to a violation of his constitutional right to file a habeas petition, such claim has been rejected in the Fifth Circuit.
Wesson, 305 F.3d at 347.
See Reyes-Requena, 243 F.3d at 901 n. 19 (savings clause does not violate the Suspension Clause); see also Wesson, 305 F.3d at 346-47 (finding "without merit" petitioner's argument that if neither relief under § 2255 nor the Great Writ is available, then an unconstitutional suspension of the writ has occurred).
It is therefore ORDERED that all claims made the basis of Petitioner's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 be, and they are hereby, DISMISSED WITH PREJUDICE to their being refiled under 28 U.S.C. § 2241.