POELLNITZ v. CHILDRESS

KEITH GIBLIN, Magistrate Judge

Petitioner Steven L. Poellnitz, an inmate confined in the Federal Correctional Complex in Beaumont, Texas, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Background and Procedural History

On November 19, 1999, following a plea of guilty, in the United States District Court for the Southern District of Alabama, petitioner was convicted of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Petitioner was sentenced to a term of 168 month term of imprisonment to be followed by a five year term of supervised release.

Petitioner appealed his conviction and sentence to the Eleventh Circuit Court of Appeals. On October 18, 2000, the judgment of the district court was affirmed.

The Petition

Petitioner claims that his sentence was illegally enhanced concerning a gun for which he was never indicted. Interpreted liberally, the petitioner is construed to assert that petitioner's sentence is invalid in light of Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 125 S.Ct. 738 (2005).

Analysis

Petitioner is not challenging the manner in which his sentence is being executed. Instead, he attacks the legality of his conviction and sentence. Section 2255 provides the primary means of collaterally attacking a federal conviction and sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Relief under this section is warranted for errors that occurred at trial or sentencing. Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). "[A] petition for a writ of habeas corpus pursuant to section 2241 is not a substitute for a motion under [section] 2255." Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000) (quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)).

Section 2241 is correctly used to attack the manner in which a sentence is executed. Tolliver, 211 F.3d at 877. A petition filed under § 2241 which attacks errors that occurred at trial or sentencing is properly construed as a § 2255 motion. Id. at 877-78. However, section 2255 contains a "savings clause," which acts as a limited exception to this general rule. The savings clause provides the following:

"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."

28 U.S.C. § 2255.

Petitioner's argument is directed toward a sentencing error; such an argument may not be brought under 28 U.S.C. § 2241. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005). Further, petitioner's argument that he is entitled to proceed under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C. § 2255 because relief under that section is "inadequate or ineffective" is unavailing. See id. at 427 (holding that a claim under Booker does not fit within the savings clause of 28 U.S.C. § 2255). Accordingly, the petition should be dismissed.

Recommendation

The above-styled petition for writ of habeas corpus should be dismissed.

Objections

Within ten (10) days after being served with a copy of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.