Miner v. Roy, C.A. NO. C-11-039
| Decision Date | 08 November 2011 |
| Docket Number | C.A. NO. C-11-039 |
| Parties | GERALD MINER v. WARDEN KEITH ROY |
| Court | U.S. District Court — Southern District of Texas |
Petitioner is an inmate at the Federal Bureau of Prisons ("BOP") currently incarcerated at the Federal Correctional Institution in Three Rivers, Texas. On February 14, 2011, he filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2241. (D.E. 1). Pending is Respondent's motion to dismiss. (D.E. 30). On October 17, 2011, Petitioner filed his response. (D.E. 31).1 For the reasons set forth herein, Respondent's motion to dismiss is granted, and this habeas petition is dismissed.
On April 14, 1995, a federal grand jury for the Eastern District of Missouri issued an initial indictment charging Petitioner with being a felon in possession of a firearm. (D.E. 2, at 5; D.E. 2-1, at 7). The final eight-count superseding indictment alleged that: (I) on January 6, 1993, he was a felon in possession of a firearm, (II) possessed the firearm with intent to distribute crack cocaine, and (III) used or carried a firearm in relation to a drug trafficking crime; (IV) on June 3, 1993, he was a felon in possession of a firearm; (V) on November 29, 1993, he was a felon in possession of ammunition; and (VI) on February 11, 1994, he was a felon in possession of a firearm, (VII) possessed the firearm with intent to distribute cocaine, and (VIII)used or carried the firearm in relation to a drug trafficking crime. United States v. Miner, 345 F.3d 1004, 1005 (8th Cir. 2003).
After Petitioner was convicted by a jury of all counts, the government dismissed Count III, and the district court sentenced him to 420 months in prison on January 18, 1996. United States v. Miner, No. 4:95CR137-JCH (unpublished). Petitioner immediately appealed his conviction to the United States Court of Appeals for the Eighth Circuit, which affirmed both the conviction and sentence. United States v. Miner, 108 F.3d 967 (8th Cir. 1997).
Petitioner subsequently filed his initial habeas petition pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence on October 9, 1998, and the district court granted the motion to entertain a reduction in his sentence. Miner v. United States, No. 4:95cv861, 2007 WL 1300396, at *1 (E.D. Mo. May 2, 2007) (unpublished). Although the Eighth Circuit noted that the new 240 month sentence later imposed by the district court was well below the punishment range required by the Sentencing Guidelines, the court affirmed the new sentence on October 9, 2003. Miner, 345 F.3d at 1006-07.
On July 12, 2004, Petitioner filed another motion pursuant to § 2255. Miner v. United States, No. 4:04cv861-JCH, 2007 WL 148766, at *1 (E.D. Mo. Jan. 16, 2007) (unpublished). While this second § 2255 motion was pending, the district court that sentenced him corrected the sentence miscalculation sua sponte and amended his sentence to 300 months' imprisonment on December 6, 2005. Miner, 2007 WL 1300396, at *1. On January 16, 2007, the district court dismissed this second § 2255 motion. See generally Miner, 2007 WL 148766.
Petitioner filed his third § 2255 motion challenging his conviction and sentence on November 1, 2007. Miner v. United States, No. 4:07cv1878-JCH (E.D. Mo. Nov. 29, 2007)(unpublished). The district court construed this motion as an unauthorized successive collateral attack and dismissed the petition.
On April 2, 2009, Petitioner filed a § 2241 petition challenging his conviction and sentence. Miner v. Hollingsworth, 3:09cv254-MJR, 2009 WL 3156702 (S.D. Ill. Sept. 28, 2009) (unpublished). The district court dismissed this action, concluding that § 2255 was not inadequate or ineffective to challenge his conviction or sentence. Id. at *3-4. On appeal, the Seventh Circuit affirmed the dismissal because "[t]here has been no new Supreme Court caselaw interpreting § 924(c) [] since his last § 2255 motion." Miner v. Hollingsworth, No. 09-3476 (7th Cir. February 23, 2010) (unpublished).
Petitioner is challenging the validity of his conviction and sentence on four grounds. First, he alleges that the United States District Court for the Eastern District of Missouri violated the Speedy Trial Act, 18 U.S.C. § 3161, by failing to set a trial date within the prescribed time period. (D.E. 1, at 3). Second, he argues that his is actually innocent of using or carrying a firearm within the meaning of 18 U.S.C. § 924(c)(1). Id. at 4. Third, he protests the district court's interpretation of a previously filed habeas petition as successive. Id. at 4-5. Last, he contends that the trial court miscalculated his offense levels during sentencing. Id. at 4.
Respondent maintains that Petitioner is not entitled to habeas relief because he seeks to collaterally attack his conviction in this § 2241 action without satisfying the Savings Clause exception set forth by § 2255. (D.E. 30, at 9).
A federal petitioner seeking relief pursuant to 28 U.S.C. § 2241 must first exhaust his administrative remedies through the BOP.2 See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam); United States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990) (citations omitted). Exhaustion, however, is not required "where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action." Fuller, 11 F.3d at 62 (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985)). Because Petitioner is actually challenging his underlying conviction through this § 2241 action, the BOP cannot grant the relief he seeks. (D.E. 30, at 5). Accordingly, Petitioner has no claim that could have been exhausted in this action.
The Fifth Circuit has explained the difference between motions filed pursuant to § 2255 and petitions filed pursuant to § 2241 as follows:
Section 2255 is the primary means of collaterally attacking a federal sentence. Section 2241 is used to attack the manner in which a sentence is executed. A § 2241 petition which attacks errors that occur at trial or sentencing is properly construed under § 2255. Nevertheless, a § 2241 petition attacking a federally imposed sentence may be considered if the petitioner establishesthe remedy under § 2255 is inadequate or ineffective.
Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000) (per curiam) (emphases in original) (internal citations omitted); see also Pack v. Yusuff, 218 F.3d 448, 452-54 (5th Cir. 2000) (collecting cases).
Thus, a § 2241 petition, which attacks errors that occurred at trial or sentencing, must either be dismissed, or construed as a § 2255 motion to vacate, set aside, or correct a sentence. Pack, 218 F.3d at 452 (citations omitted). There is an exception to this rule, however, as discussed in Tolliver. Specifically, a § 2241 petition attacking a federally imposed sentence may be considered if the petitioner establishes that the remedy afforded by § 2255 is "inadequate or ineffective," thereby invoking the Savings Clause of § 2255. 211 F.3d at 878 (citation omitted). The Savings Clause provides that successive petitions must be denied unless inadequacy or ineffectiveness is demonstrated:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added).
A petitioner must satisfy a two-prong test before the Savings Clause can be invoked to address errors occurring at trial, or sentencing in a petition filed pursuant to § 2241. The Fifth Circuit has explained the test:
[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law atthe time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion. Under these circumstances, it can be fairly said, in the language of the savings clause, that "the remedy by a [successive § 2255] motion is inadequate or ineffective to test the legality of [the petitioner's] detention." Of course, this test will operate in the context of our existing jurisprudence regarding what is not sufficient to obtain access of the savings clause.
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001) (emphasis in original) (citing Pack, 218 F.3d at 452). Section 2241 is not a mere substitute for § 2255, and a petitioner bears the burden of showing that the § 2255 remedy is inadequate or ineffective. Id. at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209, 214 (5th Cir. 2000)). Notably, a § 2255 motion is not inadequate or ineffective merely because a petitioner cannot meet the "second or successive" requirements pursuant to § 2244(b) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pack, 218 F.3d 452-53 (citations omitted). Similarly, neither the application of a procedural barrier nor a prior unsuccessful § 2255 motion would be sufficient, in and of itself, to demonstrate the inadequacy or ineffectiveness of the remedy. Id. at 453.
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