United States District Court, N.D. Texas, Fort Worth Division
JAMES R. MCTAGUE, Petitioner,
ERIC D. WILSON, Warden, FMC-Fort Worth, Respondent.
OPINION AND ORDER
R. MEANS UNITED STATES DISTRICT JUDGE.
the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 filed by Petitioner, James R. McTague,
a federal prisoner confined at FMC-Fort Worth, against Eric
D. Wilson, warden of FMC-Fort Worth, Respondent. After having
considered the pleadings and relief sought by Petitioner, the
Court has concluded that the petition should be dismissed for
lack of jurisdiction.
Factual and Procedural History
is serving a life sentence on his drug-related convictions in
the western division of the United States District Court for
the Central District of California. See United States v.
Ponce, 51 F.3d 820 (9th Cir. 1995). In this petition,
Petitioner challenges the validity of his life sentence. More
specifically, he asserts that, on remand, the convicting
court improperly “departed upward by two levels in
offense level and by two levels in criminal history
category.” (Pet. 6-7, doc. 1.) Petitioner seeks an
order correcting his judgment and commitment order reflecting
a sentence of 365 months' imprisonment and his immediate
release. (Id. at 8.) Petitioner has filed a prior
§ 2255 motion to vacate, set aside, or correct his
sentence and a motion for a sentence reduction under 18
U.S.C. § 3582(c)(2) and Amendment 782 in the convicting
court, to no avail.
§ 2255 motion to vacate, set aside, or correct a federal
sentence is the primary means under which a federal prisoner
may collaterally attack the legality of a conviction or
sentence, while a § 2241 petition for writ of habeas
corpus is generally used to challenge the manner in which a
sentence is executed. See Cox v. Warden, Fed. Det.
Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). In the Fifth
Circuit, an attack on a federal conviction or sentence may
only be considered under § 2241 if the petitioner
establishes that the remedy under § 2255 is inadequate
or ineffective. Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000). To meet this burden under this so-called
“savings clause, ” a petitioner must show that
(1) the petition raises a claim that is based on a
retroactively applicable Supreme Court decision, (2) the
claim was foreclosed by circuit law at the time when it
should have been raised in the petitioner's trial,
appeal, or first § 2255 motion, and (3) that
retroactively applicable decision establishes that the
petitioner may have been convicted of a nonexistent offense.
Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010);
Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). The United States Court of Appeals for the
Fifth Circuit has repeatedly held that challenges to the
validity of a sentencing enhancement do not satisfy the
savings clause of § 2255(e). See Kelley v.
Castaneda, 711 Fed. App'x 243, 243-44 (5th Cir.
2018) (citing cases).
Petitioner acknowledges Fifth Circuit law, he nevertheless
implores the Court to adopt the holding in United States
v. Wheeler, 886 F.3d 415 (4th Cir. 2018), cert.
denied, 2019 WL 1231947 (U.S. Mar. 18, 2019) (No.
18-420), in which the United States Court of Appeals for the
Fourth Circuit held that the savings clause may be used as an
avenue for prisoners to test the legality of their sentences
based on certain criteria. 886 F.3d at 428-29. However, this
Court is bound by Fifth Circuit law. Petitioner fails to
satisfy the requirements of the savings clause under the
criteria adopted by the Fifth Circuit. Thus, he cannot invoke
the savings clause of § 2255 as to the claim presented
in this habeas-corpus proceeding. Because Petitioner's
claim does not fall within the savings clause of §
2255(e), it is not cognizable in a § 2241 petition. The
Court is therefore without jurisdiction to consider the
petition. See Christopher v. Miles, 342 F.3d 378,
385 (5th Cir. 2003).
reasons discussed, the Court DISMISSES Petitioner's
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 without prejudice for lack of jurisdiction.
Federal Rule of Appellate Procedure 22 provides that an
appeal may not proceed unless a certificate of appealability
is issued under 28 U.S.C. § 2253. The certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” Miller-El v. Cockrell,537 U.S. 322,
336 (2003). “Under this standard, when a district court
denies habeas relief by rejecting constitutional claims on
their merits, ‘the petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.'” McGowen v. Thaler,675 F.3d 482,
498 (5th Cir. 2012) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). When the district court denies the
petition on procedural grounds without reaching the merits,
the petitioner must show “that jurists of reason would
find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
(quoting Slack, 529 U.S. at 484). This inquiry
involves two components, but a court may deny a certificate