Houston v. Hollingsworth

Filing 6

ORDER adopting 4 Report and Recommendation; overruling 5 Objection to Report and Recommendation; dismissing petition for writ of habeas corpus and closing case. Signed by Chief Judge Karen E. Schreier on 12/18/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BENNIE T. HOUSTON,
Petitioner,
vs.
MR. HOLLINGSWORTH,
Respondent.

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Civ. 12-4073-KES

ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS

Petitioner, Bennie T. Houston, filed a petition for relief under 28 U.S.C.
§ 2241 on April 18, 2012. Docket 1. The court referred the petition to United
States Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B)
for the purposes of conducting any necessary hearings and issuing a report
and recommendation for the disposition of Houston’s § 2241 petition.
On August 13, 2012, Magistrate Judge Simko issued his report and
recommendation. Docket 4. Houston timely filed his objections to the report
and recommendation on August 20, 2012. Docket 5. For the reasons set forth
herein, Magistrate Judge Simko’s report and recommendation will be adopted
in full.
DISCUSSION
The court’s review of the magistrate judge’s decision is governed by 28
U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Pursuant to
28 U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely

made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to.”). In the instant case, Houston objects to Magistrate Judge Simko’s
findings that (1) the district court does not have jurisdiction to consider
Houston’s § 2241 petition, and (2) Houston’s claim fails on the merits. Docket
5. The court has reviewed de novo the issues raised by Houston’s objections.
In his first objection, Houston asserts that the district court does, in
fact, have proper jurisdiction to consider his § 2241 petition because the
petition was filed pursuant to the “savings clause” found at § 2255(e), which
states as follows:
[an application for habeas relief] 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.
According to Houston, the relief afforded to him by his original § 2255 petition
was inadequate or ineffective, but this is only because Houston failed to raise
the sentencing issue in his original § 2255 petition–a shortcoming that
Houston claims was the result of the complexity of the “reform act sentencing
scheme.” Id. Houston further claims that a successive § 2255 petition would be
inadequate or ineffective because, due to the one-year statute of limitations,
Houston is unable to receive relief under a § 2255 petition. Id.
As Magistrate Judge Simko noted in his report and recommendation,
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a § 2255 motion is not “inadequate or ineffective” merely because
(1) “§ 2255 relief has already been denied,” (2) “[the] petitioner has
been denied permission to file a second or successive § 2255
motion,” (3) “a second or successive § 2255 motion has been
dismissed,” or (4) “[the] petitioner has allowed the one year statute
of limitations and/or grace period to expire.”
Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003) (quoting United States v.
Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000)). Furthermore, the magistrate judge
explained that “a § 2241 habeas petitioner cannot raise, in the district of
incarceration, an issue which could have been or actually was raised in a
§ 2255 motion filed in the sentencing district.” Id. at 1092 (citing Lurie, 207
F.3d at 1077–78).
Nonetheless, Houston maintains that the relief available to him through
a § 2255 petition is inadequate or ineffective because the complexity of the
issue at hand prevented him from raising it within the one-year statute of
limitations applicable to a § 2255 petition. Docket 5 at 2. Such an explanation,
however, does not suffice to give this court subject matter jurisdiction over
Houston’s § 2241 petition. The fact that the statute of limitations for filing a
§ 2255 petition has expired does not render the remedies available to Houston
in the sentencing district “inadequate” or “ineffective.” See Lurie, 207 F.3d at
1077 (“[T]he fact that [petitioner] may not now utilize § 2255 because his oneyear grace period has run, does not automatically render § 2255 inadequate or
ineffective.”). Because the issue before this court could have been raised in a

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§ 2255 motion filed in the sentencing district, it is not properly raised in the
district where petitioner is incarcerated.
In his second objection, Houston asserts that the magistrate judge’s
finding–that the twenty-year maximum penalty found at 21 U.S.C.
§ 841(b)(1)(C) applied to Houston’s conviction–was “incorrect” and “not on
point.” Docket 5 at 2. Houston contends that the court should have utilized 18
U.S.C. §§ 3559(b) and 3583(b) to determine his maximum penalty because
Congress intended that those two statutes “work together in determining the
actual statutory maximum . . . term of imprisonment for any federal offense.”
Id. at 3.
Pursuant to 18 U.S.C. § 3559(b), “an offense classified under subsection
(a) carries all the incidents assigned to the applicable letter designation, except
that the maximum term of imprisonment is the term authorized by the law
describing the offense” (emphasis added). Section § 3583(b), on the other hand,
discusses authorized terms of supervised release. Although these two statutes,
as Houston suggests, work together for purposes of sentencing determinations,
there are other provisions the court must also consider. Specifically, as noted
above, the court must utilize the maximum term of imprisonment authorized
by the law describing the offense. In Houston’s case, 21 U.S.C. § 841 describes
his offense–conspiracy to possess with intent to distribute a controlled
substance. Because the controlled substances at issue were cocaine and crack
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cocaine, the applicable maximum term of imprisonment, as specified by 21
U.S.C. § 841(b)(1)(C), was “not more than 20 years.”
Houston further argues that, to reconcile the various sentencing
guidelines within Title 18, the court must impose the sentencing guideline
found at 18 U.S.C. § 3581(b)(3). As Magistrate Judge Simko noted, Houston is
not the first federal inmate to raise the argument that the statute describing
his specific offense is obscured by other, more general penal statutes. Docket 4
at 6; see United States v. Wilson, 10 F.3d 734 (10th Cir. 1993). To clarify the
apparent discrepancy between 18 U.S.C. § 3581 and the statute describing the
petitioner’s specific offense, the United States Court of Appeals for the Tenth
Circuit in Wilson explained that the terms of imprisonment set forth in 18
U.S.C. § 3581 are sentencing requirements implicated by “[g]eneric” felonies.
Id. at 735. Because attempted robbery was not a generic Class C felony but
rather a felony specifically prescribed by 18 U.S.C. § 2113, the Tenth Circuit
applied the maximum term of imprisonment set forth at § 2113(a). Id. at 736.
Similarly, the felony for which Houston was convicted was not a generic
Class C felony. Rather, it was specifically defined at 21 U.S.C. § 841. Because
Houston’s offense was specifically prescribed by law, the court was required to
impose the maximum term of imprisonment authorized by that law.
Consequently, even if this court had jurisdiction to consider Houston’s § 2241
petition, Houston’s request for a reduced sentence would fail on the merits.
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Therefore, it is
ORDERED that the report and recommendation of Magistrate Judge
Simko (Docket 4) is accepted in full and Houston’s § 2241 petition (Docket 1) is
denied in all respects. Petitioner’s objections (Docket 5) are overruled.
Dated December 18, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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