Barlow v. Daniels

Filing 23

MEMORANDUM ORDER overruling objections and adopting 20 Report and Recommendation. Signed by District Judge Marcia A. Crone on 3/1/18. (tkd, )

UNITED STATES DISTRICT COURT
DOUGLAS LEE BARLOW,
Petitioner,
versus
CHARLES A. DANIELS,
Respondent.

EASTERN DISTRICT OF TEXAS
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 1:14-CV-546

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Douglas Lee Barlow, an inmate confined at the United States Penitentiary in
Beaumont, Texas, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. The court referred this matter to the Honorable Keith F. Giblin, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders
of this court.
The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning the petition. The magistrate judge recommends the petition be
dismissed.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. Petitioner filed objections to the
Report and Recommendation. The court must therefore conduct a de novo review of the
objections in light of the pleadings and the applicable law.
Petitioner is challenging convictions for tampering with a witness and conspiring to tamper
with a witness. He asserts two grounds for review. His first ground for review asserts factual
innocence. His second ground for review asserts he is legally innocent because, as a result of the

Supreme Court’s decision in Fowler v. United States, 550 U.S. 668 (2011), what the government
accused him of doing no longer constitutes a crime.1
The magistrate judge concluded that neither of the grounds for review provided petitioner
with a basis for relief. With respect to the first ground for review, the magistrate judge concluded
that factual innocence did not provide a Section 2241 petitioner with a basis for relief. With
respect to the second ground for review, the magistrate judge concluded this ground for review
was not foreclosed at the time of petitioner’s trial, direct appeal or first motion to vacate, set aside
or correct sentence. Accordingly, petitioner could not assert this ground for review in a Section
2241 petition.
Petitioner states he rejects the magistrate judge’s Report and Recommendations and faults
the magistrate judge for not analyzing the merits of his grounds for review.

However,

petitioner makes no attempt to show that the magistrate judge’s conclusion that the grounds for
review were not cognizable in this proceeding was erroneous.
The magistrate judge’s conclusion was not erroneous. Claims of factual innocence may
not be asserted in a Section 2241 petition. Further, petitioner has not cited any authority that
demonstrates the argument he attempts to make based on Fowler was foreclosed by applicable
circuit law when it could have been asserted at trial, on direct appeal or in petitioner’s first motion
to vacate. In order to be entitled to relief in this proceeding, petitioner must assert a ground for
review that: (1) is based on a retroactively applicable decision of the United States Supreme Court
which demonstrates he was convicted of a nonexistent offense and (2) was foreclosed by
established circuit law when it could have been raised during trial, on direct appeal or in an initial

1

Petitioner’s convictions are based upon a violation of 18 U.S.C. § 1512(a)(1). That section makes it a crime
to kill a person with the intent to prevent that person from communicating with a law enforcement or judge
of the United States. In Fowler, the Supreme Court held that in order to prove a violation of this section, the
government needed to prove there was a reasonable likelihood that the person killed would have
communicated with a federal law enforcement officer rather than just to any law enforcement officer.
Petitioner contends there was no evidence that the person involved in his offense was killed in order to
prevent her from communicating with a federal law enforcement officer.

2

motion to vacate, set aside or correct sentence. Reyes-Requena v. United States, 243 F.3d 893,
894 (5th Cir. 2001). Petitioner’s second ground for review does not satisfy this standard.
ORDER
The magistrate judge correctly found that Petitioner’s grounds for review are not
cognizable in this proceeding. Petitioner’s objections are therefore OVERRULED. The findings
of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate
judge is ADOPTED. A final judgment shall be entered dismissing the petition.
.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 1st day of March, 2018.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

3