Moore v. Warden, FCI Texarkana

Filing 10

ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATIONS for 2 Report and Recommendations Signed by District Judge Robert W. Schroeder, III on 03/08/18. (lfs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JAMES DANIEL MOORE

'

VS.

'

WARDEN, FCI TEXARKANA

'

CIVIL ACTION NO. 5:17-cv-112

MEMORANDUM ORDER OVERRULING PETITIONER=S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE=S REPORT AND RECOMMENDATION
Petitioner James Daniel Moore, a prisoner confined at the Federal Correctional Institution
in Texarkana, Texas, proceeding through counsel, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. ' 2241. Docket No. 1.
The Court referred this matter to the Honorable Caroline Craven, United States Magistrate
Judge, for consideration pursuant to the applicable laws and orders of this Court. The Magistrate
Judge recommends dismissing the petition for writ of habeas corpus. Docket No. 2.
The Court has received and considered the report and recommendation of the Magistrate
Judge filed pursuant to such order, along with the record, pleadings and all available evidence.
The petitioner filed objections to the report and recommendation. Docket No. 3. The Court then
ordered the respondent to file a response to the petitioner’s objections. Docket No. 4. The
respondent filed its response on February 22, 2018. Docket No. 7. Petitioner filed a reply.
Docket No. 9.
The Court has conducted a de novo review of the objections in relation to the pleadings
and the applicable law.

See FED. R. CIV. P. 72(b). After careful consideration, the Court

concludes the objections are without merit.

The petitioner alleges that he should be resentenced in light of Amendment 801 to the
United States Sentencing Guidelines, which took effect on November 1, 2016. Docket No. 1 at
6. This claim does not challenge the manner in which the petitioner=s sentence is being executed.
Rather it is an attack on the legality of his sentence, based on the petitioner=s claim that an
amendment to the Sentencing Guidelines should be applied retroactively to reduce the petitioner=s
sentence. A claim challenging the legality of a sentence generally must be brought under 28
U.S.C. ' 2255, not ' 2241. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).
This court is bound by circuit precedent, which holds that the savings clause of ' 2255(e),
which in some instances allows a petitioner to proceed under ' 2241 when relief is not available
under ' 2255, Aapplies 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 at the time when the claim should have been raised in
the petitioner=s trial, appeal, or first ' 2255 motion.@ Reyes-Requena v. United States, 243 F.3d
893 (5th Cir. 2001). As the Magistrate Judge concluded, the petitioner failed to meet either prong
of the Reyes-Requena test. Docket No. 2 at 3. The petitioner=s claim does not demonstrate that
he was convicted of Aa nonexistent offense@ as required by the actual innocence prong of ReyesRequena.

Additionally, the petitioner=s ground for review is not based on a retroactively

applicable Supreme Court decision, and it was not foreclosed at the time of trial. Therefore, the
petitioner may not pursue his claim concerning his sentence under ' 2241.
The petitioner argues that he should be allowed to pursue relief under ' 2241 because the
savings clause of ' 2255(e) is unconstitutionally vague, citing the recent Supreme Court case
Johnson v. United States, 135 S. Ct. 2551 (2015). Docket No. 3 at 2. In response, the United

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States argues that while petitioner’s counsel has made the exact same argument in federal district
courts across the country, he has been denied relief each time. Docket No. 7 at 3. The United
States further argues that the statute that was held unconstitutionally vague in Johnson is different
from the statute at issue in this case. Id. at 4.
The Court declines to grant petitioner’s relief. Other courts have considered this exact
same argument and denied relief. See Kapenekas v. Snyder-Norris, 2016 WL 3840521, at *5
(E.D. Ky. July 12, 2016) (“Kapenekas cites no credible case law in support of his conclusory
proposition that the savings clause of 28 U.S.C. § 2255 is void for vagueness.”); Wolfe v. Warden,
FCI-Edgefield, 2017 WL 3097843, at *2 (D. S.C. July 21, 2017) (finding that the savings clause
is not unconstitutionally vague); Byers v. Warden, FCI Butner Medium II, 2017 WL 3725187, at
*4 (E.D. N.C. Aug. 29, 2017) (“The court finds that § 2255’s savings clause does not suffer from
the same flaws as the ACCA’s residual clause as described by the Supreme Court in Johnson.”).
Moreover, the United States is correct that the statute at issue in this case is different from
the one struck down in Johnson. Petitioner argues that the statues are similar because there is a
“deep, multi-circuit split on the interpretation of the savings clause.” Docket No. 3 at 3. But
while “Petitioner's examples demonstrate some differences by circuit courts in applying the
savings clause, [they] do not meet the grave uncertainty described by the Supreme Court in
Johnson.” Rojas v. Shartle, 2017 WL 4238735, at *5 (D. Ariz. Sept. 25, 2017). “For example,
they establish neither ‘repeated attempts and failures to craft a principled and objective standard’
nor ‘pervasive disagreement about the nature of the inquiry one is supposed to conduct and the
kinds of factors one is supposed to consider.’ ” Id. (quoting Johnson, 135 S. Ct. at 2558, 2560).
“Although how courts articulate the elements of a valid claim under the savings clause differ, for
most circuits the fundamental elements remain.” Rojas, 2017 WL 4238735, at *5.

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Therefore, because the cases cited by the parties have all declined to find the savings clause
.
of ' 2255(e) unconstitutionally vague and because of the key differences between the statute at
issue here and the one struck down in Johnson, the Court declines to find that the savings clause
of ' 2255(e) is unconstitutionally vague.1
Accordingly, petitioner=s objections are OVERRULED.

The findings of fact and

conclusions of law of the Magistrate Judge are correct, and the report and recommendation of the
Magistrate Judge is ADOPTED. A final judgment will be entered in this case in accordance with
the Magistrate Judge=s recommendation.
SIGNED this 8th day of March, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

1 Further, in Nichols v. Warden, FCI Beaumont, 694 F. App’x 324 (5th Cir. 2017), the Court affirmed a district
court’s rejection of the same argument, stating that the “conclusional argument that the savings clause of 28 U.S.C.
' 2255(e) is unconstitutionally vague fails to show that the district court erred in dismissing [Petitioner’s] ' 2241
petition.”

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