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Brewer v. United States

United States District Court, N.D. Texas, Dallas Division

April 24, 2018

STEVEN BREWER (BOP Register No. 24281-077), Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         Petitioner 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 of jurisdiction.

         Applicable Background

         Through 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.

         Legal Standards and Analysis

         “Federal 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.

         Section 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))).

         And a 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 § 2255(e).
[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.

         Because 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 § 2255.”).

         Recommendation

         The 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 ...


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