United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
the Court is a purported petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by Petitioner,
Phillip Robinette, a federal prisoner confined at FMC-Fort
Worth, against Eric Wilson, warden of FMC-Fort Worth,
Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition
should be dismissed for lack of subject matter jurisdiction.
2010, in the United States District Court for the Eastern
District of Texas, No. 4:09-cr-00070-010, Petitioner pleaded
guilty to one count of conspiracy to possess with intent to
distribute or dispense methamphetamine and gamma
hydroxybutyrate (“GHB”) and was sentenced to a
240-month term of imprisonment. Resp't's App. 1-2, ECF
of this petition, Petitioner asserts that his trial counsel
was ineffective by failing to investigate his case and
subject the prosecution's case to meaningful adversarial
testing. Pet. 3, 5, ECF No. 1. More specifically, he contends
that based on alleged newly discovered evidence, had counsel
“given any effort she would have found that the federal
government used [his] state case evidence to prosecute [him],
however the state case was dismissed because of no search
warrant, fruit from the poisonous tree.” Id.
at 3. He urges that the evidence was therefore tainted and
could not have been used in his federal case against him.
Id. at 12-15. Absent that evidence, he asserts that
he is actually innocent and that he would not have pleaded
guilty and, instead, would have elected to go to trial.
Id. at 4-5; Objs. 2, ECF No. 11.
filed a prior successive § 2255 motion in the convicting
court raising the claims presented herein, which was
dismissed without prejudice, subject to authorization from
the Fifth Circuit Court of Appeals. Resp't's App. 18.
The Fifth Circuit denied Petitioner's motion for such
authorization based on his failure to meet the requirements
of § 2255(h). 28 U.S.C. § 2255(h).Respondent asserts
that Petitioner is not entitled to relief under § 2241
and that the petition should be dismissed for lack of
jurisdiction. Resp't's Resp. 1-7.
general rule, a federal prisoner who seeks to challenge
collaterally the legality of a conviction or sentence must do
so in a § 2255 motion to vacate, set aside, or correct
sentence. Padilla v. United States, 416 F.3d 424,
425-26 (5th Cir. 2005); Cox v. Warden, Fed. Det.
Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Such claims
may only be raised in a § 2241 petition if the
petitioner establishes that the remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention. Tolliver v. Dobre, 211 F.3d 876, 877 (5th
Cir. 2000). The burden of demonstrating the inadequacy of the
§ 2255 remedy rests with the petitioner. Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). In order to
meet this burden, a petitioner must show that (1) the claim
is based on a retroactively applicable Supreme Court
decision, (2) the claim was foreclosed by circuit law at the
time when the claim should have been raised in his trial,
appeal, or first § 2255 motion, and (3) that
retroactively applicable decision establishes that he 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).
does not raise a savings-clause argument, and it is clear
that he cannot meet the three requirements from the face of
the petition. Section 2255(h) provides the actual-innocence
exception to bringing a second or successive § 2255
motion and that exception does not relate in any way to a
prisoner's ability to bring a § 2241 petition.
Petitioner's prior unsuccessful § 2255 motion and
his inability to satisfy the successive requirements in
§ 2255(h) do not entitle him to proceed under §
2241 without meeting the requirements of the savings clause.
See Jeffers, 253 F.3d at 830; Pierre v.
Justice, 222 Fed. App'x 415, 2007 WL 760845, at *1
(5th Cir. Mar. 12, 2007). Because Petitioner's challenge
to his conviction and sentence 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 herein, Petitioner's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 is
DISMISSED for lack of subject matter
jurisdiction. A certificate of appealability is