United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Jamal Derrick Hudson, an inmate confined at the Federal
Correctional Complex located in Texarkana, Texas, proceeding
pro se, brought this petition for writ of habeas
corpus under 28 U.S.C. § 2241. Docket No. 1.
Court referred this matter to the Honorable Caroline M.
Craven, United States Magistrate Judge, for consideration
pursuant to applicable laws and orders of this Court. The
Magistrate Judge recommends the petition be dismissed. Docket
No. 2. The Court has received and considered the Report and
Recommendation of the Magistrate Judge, along with the
record, pleadings and all available evidence.
filed objections to the Magistrate Judge's Report and
Recommendation. Docket No. 4. This requires a de
novo review of the objections in relation to the
pleadings and the applicable law. See Fed. R. Civ.
P. 72(b). After thorough consideration of the pleadings, the
Court concludes Petitioner's objections should be
Denial of a Fair Trial
asserts he did not receive a fair trial because he was tried
and convicted on a legal holiday. Petitioner attempts to rely
on the old common law rule of dies non juridicus to
claim that his conviction on a legal holiday, Veteran's
Day, was unlawful. Petitioner complains that no court has yet
addressed his legal holiday issue. However, as the Magistrate
Judge explained, Petitioner does not meet the criteria
required to support a claim under the savings clause of 28
U.S.C. § 2255. See Padilla v. United States,
416 F.3d 424 (5th Cir. 2005); Reyes-Requena v. United
States, 243 F.3d. 893 (5th Cir. 2001). Therefore, a
petition for writ of habeas corpus under § 2241 is not
the proper avenue for Petitioner to have his argument
Magistrate Judge correctly determined, the primary means for
collaterally attacking a federal conviction and sentence is
by filing a motion to vacate, set aside or correct sentence
under 28 U.S.C. § 2255. See Tolliver v. Dobre,
211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden, Fed.
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990).
However, a prisoner may use Section 2241 as the vehicle for
attacking the conviction if it appears that the remedy by
motion “is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255. A
petition for writ of habeas corpus under 28 U.S.C. §
2241 is not a substitute for a motion to vacate sentence
under 28 U.S.C. § 2255, and Petitioner has failed to
satisfy his burden of coming forward with evidence to show
the inadequacy or ineffectiveness of a motion under §
2255. See Jeffers v. Chandler, 253 F.3d 827 (5th
Cir. 2001). Petitioner's claim does not amount to a claim
that he was convicted of “a nonexistent offense”
as required to proceed under Section 2241 under the savings
clause of Section 2255. See Reyes-Requena, 243 F.3d
Petitioner cites to Waley v. Johnston, 316 U.S. 101
(1942), in support of his position. Docket No. 1 at 2.
However, Petitioner provides no analysis as to how or why
Waley is applicable to this case. In Waley,
the petitioner, Harmon Metz Waley, had sought a writ of
habeas corpus in the district court, “alleging upon
oath that he had been cocerced, by intimidation and threats
by an agent of the Federal Bureau of Investigation, to plead
guilty to an indictment for kidnapping.”
Waley, 316 U.S. at 102. However, “[t]he
district court denied the application for the writ without
hearing evidence and without directing the production of the
prisoner in court.” Id. at 103. The Ninth
Circuit affirmed. Id. Ultimately, the Supreme Court
vacated the judgment and remanded for a hearing, explaining
that Waley's claims had at least entitled him to a
hearing under Walker v. Johnston, 312 U.S. 275
(1941). Waley, 316 U.S. at 105.
Petioner's claims are very different from Waley's.
Petitioner argues that the last day of his jury trial was
held on Veteran's Day, 2011. In contrast, Waley had
argued he was coerced and intimidated by a federal agent.
Waley, 316 U.S. at 102. Waley's allegations had
significant constitutional implications, as the
Waley court observed: “If the allegations are
found to be true, petitioner's constitutional rights were
infringed. For a conviction on a plea of guilty coerced by a
federal law enforcement officer is no more consistent with
due process than a conviction supported by a coerced
confession.” Id. at 104. Thus, Waley
bears little relevance to this case. Accordingly,
Petitioner's objections are OVERRULED.
Certificate of Appealability
Petitioner is not entitled to the issuance of a certificate
of appealability. An appeal from a judgment denying federal
habeas corpus relief may not proceed unless a judge issues a
certificate of appealability. See 28 U.S.C. §
2253; Fed. R. App. P. 22(b). The standard for granting a
certificate of appealability, like that for granting a
certificate of probable cause to appeal under prior law,
requires the movant to make a substantial showing of the
denial of a federal constitutional right. See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also
Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making
that substantial showing, the movant need not establish that
he should prevail on the merits. Rather, he must demonstrate
that the issues are subject to debate among jurists of
reason, that a court could resolve the issues in a different
manner or that the questions presented are worthy of
encouragement to proceed further. See Slack, 529
U.S. at 483-84. Any doubt regarding whether to grant a
certificate of appealability is resolved in favor of the
movant, and the severity of the penalty may be considered in
making this determination. See Miller v. Johnson,
200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531
U.S. 849 (2000).
Petitioner has not shown that any of the issues raised by his
claims are subject to debate among jurists of reason. The
factual and legal questions advanced by the movant are not
novel and have been consistently resolved adversely to his
position. In addition, the questions presented are not worthy
of encouragement to proceed further. Therefore, Petitioner
has failed to make a sufficient showing to merit ...