SHEPPARD v. JETER

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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:

This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.

Petitioner Reginald D. Sheppard, Reg. No. 29246-077, is a federal prisoner incarcerated in the Federal Medical Center in Fort Worth, Texas (FMC-Fort Worth).

Respondent Cole Jeter is Warden of FMC-Fort Worth.

On January 17, 1997, in Case No. 4:96-CR-153-1, Sheppard pled guilty to maintaining a place to distribute a controlled substance, cocaine base, and aiding and abetting, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. See PACER, U.S. Party/Case Index, Criminal Docket for Case # 4:96-CR-153-1, entry for January 17, 1997. On April 18, 1997, he was sentenced to a term of 135 months' incarceration. See id., entry for April 18, 1997. Sheppard appealed the trial court's judgment of conviction and sentence, but the Fifth Circuit affirmed on January 5, 1998. See id., entry for December 10, 1997. Thereafter, Sheppard sought postconviction relief via 28 U.S.C. § 2255 to no avail. See id., entries for January 1, 1999 October 29, 1999. On January 30, 2005, Sheppard filed this federal petition under § 2241.

By the instant habeas corpus action, Sheppard challenges his 135-month sentence on the basis of the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004) (reaffirming holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that "any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt"), and United States v. Booker, 125 S. Ct. 738, 756 (2005) (applying Apprendi to the Federal Sentencing Guidelines). Specifically, he asserts that his sentence was unconstitutionally enhanced under the federal sentencing guidelines based on judge-found facts under a preponderance-of-the-evidence standard. (Pet'r Memorandum of Law at 6-7.)

The threshold question is whether his claim is properly raised in a § 2241 habeas petition. Typically, § 2241 is used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5^th Cir. 2000). Section 2255, on the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5^th Cir. 1990). Section 2241 may be used by a federal prisoner to challenge the legality of his conviction or sentence only if he can satisfy the mandates of the so-called § 2255 "savings clause." See Reyes-Requena v. United States, 243 F.3d 893, 901 (5^th Cir. 2001). 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." See 28 U.S.C. § 2255.

To establish that a § 2255 motion is inadequate or ineffective, the prisoner must show that: (1) his claim is based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense, and (2) his claim was foreclosed by circuit law at the time when the claim should have been raised in his trial, appeal, or § 2255 motion. Reyes-Requena, 243 F.3d at 904. A § 2241 petition is not a substitute for a motion under § 2255, and the petitioner bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5^th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5^th Cir. 2000). A prior unsuccessful § 2255 motion, or the inability to meet the statute's second or successive requirement, does not make § 2255 inadequate or ineffective. Jeffers, 253 F.3d at 830; Toliver v. Dobre, 211 F.3d 876, 878 (5^th Cir. 2000).

Sheppard has not provided any valid reason why the § 2255's remedy is either inadequate or ineffective. Relying on Davis v. United States, 417 U.S. 333 (1974), and relevant Fifth Circuit case law, Sheppard contends that he is entitled to seek § 2241 relief under the § 2255 savings clause based on the intervening change in the substantive criminal law as articulated in Blakely and Booker, unavailable to him during his trial, direct appeal or § 2255 motion, because he is "actually innocent of the defective indictment," which failed to allege sentencing factors determined by the judge under a preponderance of the evidence standard and used to illegally enhancement his sentence. (Pet'r Memorandum of Law at 4-5.)

Although the Supreme Court's decisions in Blakely and Booker were not decided until 2004 and 2005, respectively, contrary to his assertion, Sheppard cannot satisfy the first prong of the test. His claim does not implicate his conviction for a substantive criminal offense nor has the Supreme Court expressly declared Blakely or Booker to be retroactive to cases on collateral review., The Blakely/ Booker line of cases is essentially an extension of the procedural rules expressed in Apprendi and Ring. Like Apprendi and Ring, the Blakely/Booker rule appears to merely "allocate decisionmaking authority" with respect to sentencing, rather than stating a new substantive rule that may upset a judgment of conviction on collateral review. See Schirro, 124 S. Ct. at 2523-24 (holding that Ring established a new procedural rule that does not apply retroactively to cases already final on direct review). Under these circumstances, Sheppard is precluded from challenging the legality of his sentence under § 2241. Thus, the court is without jurisdiction to consider the petition. See Christopher v. Miles, 342 F.3d 378, 379, 385 (5^th Cir.), cert. denied, 540 U.S. 1085 (2003).

Because Sheppard has not made the showing required to invoke the savings clause of § 2255 as to the claims presented in this habeas corpus proceeding, it is recommended that the government's motion to dismiss be granted and that Sheppard's petition be dismissed with prejudice for want of jurisdiction.

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 22, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 22, 2005, to serve and file 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.