United States District Court, N.D. Texas, Dallas Division
STEVEN BREWER (BOP Register No. 24281-077), Petitioner,
UNITED STATES OF AMERICA, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Steven Brewer, an inmate at FCI Seagoville (an institution in
the Dallas Division of this district), has filed a pro
se Petition for Judicial Notice of Adjudicate Facts
based on Attached Evidence and Thou Shall Not Construe as 28
U.S.C. § 2255 or Rule 60(b) [Dkt. No. 3] (the
“Petition”). This resulting action has been
referred to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b) and a
standing order of reference from United States District Judge
Ed Kinkeade. The undersigned enters these findings of fact,
conclusions of law, and recommendation that, construing the
Petition as filed under 28 U.S.C. § 2241 and invoking 28
U.S.C. § 2255(e), the Court should dismiss it for lack
the Petition, Brewer collaterally attacks the validity of a
criminal judgment entered in this Court. See Dkt.
No. 3 at 1 & 2 (referencing cause number 3:93-cr-106-H
(01)). Although Brewer does not provide a clear statutory
basis to now attack a federal criminal judgment that has been
final for some two decades, those options are extremely
limited, and, as Brewer is incarcerated in this district, the
Clerk of Court properly construed his petition as seeking
habeas relief under Section 2241.
Standards and Analysis
courts are authorized, under 28 U.S.C. § 2243, to
dispose of habeas corpus matters ‘as law and justice
require, '” Hilton v. Braunskill, 481 U.S.
770, 775 (1987) - that statute “authorizes a district
court to summarily dismiss a frivolous habeas-corpus petition
prior to any answer or other pleading by the government,
” Gatte v. Upton, No. 4:14-cv-376-Y, 2014 WL
2700656, at *1 (N.D. Tex. June 13, 2014) (footnote omitted).
And, under the Rules Governing Section 2254 Cases in the
United States District Courts - which “also apply to
§ 2241 habeas cases, ” Romero v. Cole,
No. 1:16-cv-148, 2016 WL 2893709, at *2 & n.4 (W.D. La.
Apr. 13, 2016) (collecting authority, including Castillo
v. Pratt, 162 F.Supp.2d 575, 576 (N.D. Tex. 2001)),
rec. accepted, 2016 WL 2844013 (W.D. La. May 12,
2016) - “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition, ” Rule 4, Rules Governing Section 2254 Cases
in the United States District Courts.
2241 “is the proper procedural vehicle if a prisoner
‘challenges the execution of his sentence rather than
the validity of his conviction and sentence.'”
Gallegos-Hernandez v. United States, 688 F.3d 190,
194 (5th Cir. 2012) (quoting United States v. Cleto,
956 F.2d 83, 84 (5th Cir. 1992)); see also Robinson v.
United States, 812 F.3d 476, 476 (5th Cir. 2016) (per
curiam) (“Section 2255 provides ‘the primary
means of collaterally attacking a federal sentence.'
Section 2241, on the other hand, is used to challenge
‘the manner in which a sentence is
executed.'” (quoting Tolliver v. Dobre,
211 F.3d 876, 877 (5th Cir. 2000))).
Section 2241 petition “that raises errors that occurred
at or prior to sentencing” - like the Petition -
“should be construed as a § 2255 motion.”
Robinson, 812 F.3d at 476 (citing Tolliver,
211 F.3d at 877-78). But, under Section 2255's
savings clause, a § 2241 petition that attacks custody
resulting from a federally imposed sentence may be
entertained if the petitioner shows that the remedy provided
under § 2255 is inadequate or ineffective to test the
legality of his detention. Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001); see also §
[A petitioner] has the burden of showing that the § 2255
remedy is inadequate or ineffective. See Wesson v. United
States Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th
Cir. 2002). He must show that his claims are “based on
a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a
nonexistent offense” and were “foreclosed by
circuit law at the time when the claim[s] should have been
raised in [his] trial, appeal, or first § 2255
motion.” Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001); see also Jeffers, 253
F.3d at 830-31.
Id. at 476-77.
the Petition fails to raise a claim “that is based on a
retroactively applicable Supreme Court decision, ” the
Court is “without jurisdiction to consider [it].”
Sanchez v. Chandler, No. 4:15-cv-458-Y, 2015 WL
4486773, at *1 & *2 (N.D. Tex. July 23, 2015) (citing
Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010);
Reyes-Requena, 243 F.3d at 904; Christopher v.
Miles, 342 F.3d 378, 385 (5th Cir. 2003)); cf. Scott
v. Ebberts, No. 1:09-CV-2379, 2010 WL 391814, at *4
(M.D. Penn. Jan. 11, 2010) (“[T]he remedy afforded
under § 2241 is not an additional, alternative, or
supplemental remedy to that prescribed under §
Court should construe the pro se Petition for
Judicial Notice of Adjudicate Facts based on Attached
Evidence and Thou Shall Not Construe as 28 U.S.C. § 2255
or Rule 60(b) [Dkt. No. 3] as being filed under 28 U.S.C.
§ 2241 - and ...