United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
Q'CONNOR UNITED STATES DISTRICT JUDGE
the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 filed by Petitioner, Joseph Michael
Guarascio, a federal prisoner confined at FMC-Fort Worth at
the time the petition was filed, 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
is serving a 180-month term of imprisonment for his 2010
conviction in the United States District Court for the
Eastern District of North Carolina for manufacturing child
pornography. Resp't's App. 14-15, ECF No. 9.
Petitioner has filed a prior § 2255 motion to vacate,
set aside, or correct sentence in the convicting court and
was denied permission to file a second or successive §
2255 motion by the United States Court of Appeals for the
Fourth Circuit. Id. at 2. He has also filed a prior
§ 2241 habeas petition in this Court, which was
dismissed without prejudice at his request. Order, Guarascio
v. Wilson, No. 4:17-cv-1021-Y, ECF No. 14. In the instant
§ 2241 petition, Petitioner challenges his 2010
conviction based on “actual/factual innocence”
and an involuntary and unknowing guilty plea. Pet. 5-18, ECF
§ 2241 is used to challenge the manner in which a
sentence is executed. See Warren v. Miles, 230 F.3d
688, 694 (5th Cir. 2000). Section 2255 is the primary means
under which a federal prisoner may collaterally attack the
legality of his federal conviction and sentence. See Cox
v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir.
1990). A § 2241 petition attacking a federal conviction
and sentence may be considered only if the petitioner
establishes that the remedy under § 2255 is inadequate
or ineffective to test the legality of his detention. See
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. See Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). In order to
meet this burden, a petitioner must show that (1) his claim
is based on a retroactively applicable United States Supreme
Court decision, (2) his 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. See Garland
v. Roy, 615 F.3d 391, 394 (5th Cir. 2010);
Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001).
that end, Petitioner raises the following argument:
Petitioner presses an actual, factual innocence claim
contending that the recent holdings of the Supreme Court in
Esquivel-Quintana v. Sessions, 198 L.Ed.2d 22
(2017), which held that the generic federal definition of
“sexual abuse of a minor” requires the age of the
victim to be less than 16, announced a new substantive rule
that alters the range of conduct associated with 18 U.S.C.
§ 2251(a) [under which he was convicted] and 2256
[defining a “minor” as a person under 18 years of
age]. Petitioner further contends that under the rationale of
the Esquivel-Quintana Court, as applied by other
courts since, there becomes a logical application such that
18 U.S.C. §§ 2251(a) - Sexual Exploitation of
Children, and 2256 - Definitions, are analogous to the
statute at odds in Esquivel-Quintana, 18 U.S.C.
§§ 1101(a)(43)(A) - Immigration and Nationality
General Provisions, and 3509 - Definition of Sexual Abuse of
a Minor, providing the presumptive effect of changing the age
requirement of § 2251(a) to 16, the federal age of
consent. This change now demonstrates Petitioner was
convicted of a non-existent offense, of which he was in fact
actually/factually innocent even before this watershed
Pet'r's Mem. 1-2, ECF No. 2.
Petitioner's rationale, because his girlfriend (the
victim) was 17 years of age, he is actually and factually
innocent of the crime of his conviction. However,
Petitioner's reliance on Esquivel-Quintana is
misplaced. In that case, the question was whether an
alien's prior statutory rape conviction qualified as
“sexual abuse of a minor” under the aggravated
felony provisions of 18 U.S.C. § 1101(a) (43), thereby
making him removable under the Immigration and Nationality
Act (“IMA”). The IMA does not expressly define
“sexual abuse of a minor, ” so the Supreme Court
had to engage in statutory construction.
Esquivel-Quintana, 137 S.Ct. at 1567-68. In
contrast, in this case, the operative statute is 18 U.S.C.
§ 2252 and the term “minor” as used therein
is defined in 18 U.S.C. § 2256(1) as “any person
under the age of eighteen years.” 18 U.S.C.
§§ 2252, 2256(1). There is no need to engage in
statutory construction and Esquivel-Quintana is
inapplicable. Accord Axsom v. Wilson, No.
4:18-CV-830-A, 2019 WL 118411, at *2-3 (N.D. Tex. Jan. 7,
2019) (McBryde, J.).
on Fourth Circuit precedent, Petitioner also asserts that he
is actually innocent because the government failed to prove
that he acted for the purpose of producing a visual
depiction. See United States v. Wheeler, 886 F.3d
415 (4th Cir. 2018), cert. denied, 139 S.Ct.
(2019); United States v. Palomino-Coronado, 805 F.3d
127 (4th Cir. 2015). This Court however is bound by Fifth
Circuit law. See United States v. Traxler, 764 F.3d
486, 489 (5th Cir. 2014).
Petitioner “renews” his actual-innocence claim
based on his trial counsel's coercive actions and his
trial counsel's and the government's fraud upon the
convicting court. Pet'r's Mem. 15-18, ECF No. 2.
However, he makes no argument that he can satisfy any prong
of the Reyes-Requena test under this claim.
Court notes that even if Petitioner could establish his
actual innocence, he presents no authority, and none is
found, for an actual-innocence gateway to challenge a
conviction in a § 2241 petition where, as here, he fails
to satisfy the requirements of § 2255's savings
clause. See Perez v. Stephens, 593 Fed. App'x
402, 403, 2015 WL 576845 (5th Cir. Feb. 12, 2015). A §
2241 petition is not an alternative to the relief afforded by
motion in the convicting court under § 2255. See
Pack v. Yusuff,218 F.3d 448, 452 (5th Cir. 2000)
(quoting Williams v. United States,323 F.2d 672,
673 (10th Cir.1963)). Petitioner cannot rely on § 2241
because his prior § 2255 motion was unsuccessful or to
avoid procedural hurdles presented under § 2255, such as
the restriction on filing second or successive motions to
vacate. See Jeffers, 253 F.3d at 830 (providing
prior unsuccessful § 2255 motion or the inability to
meet the statute's second or successive requirement does
not make § 2255 inadequate or ineffective);
Pack, 218 F.3d at 453 (providing prior, ...