Kirkendoll v. United States of America

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendations; denying 21 MOTION to Amend (Change of Defendants and Change to a Bivins) filed by Bobby B. Kirkendoll, 2 MOTION for Leave to Proceed in forma pauperis filed by Bobby B. Kirkendoll, 7 MOTION to Amend/Correct 5 MOTION for Reconsideration re 4 Memorandum & Opinion, Order filed by Bobby B. Kirkendoll, 9 MOTION CV-7(1) (Emergency) filed by Bobby B. Kirkendoll, 10 MOTION for Leave to Proceed in forma pauperis filed by Bobby B. Kirkendoll, 16 MOTION to Amend/Correct filed by Bobby B. Kirkendoll, 11 MOTION Pursuant to Rule CV-7 (Emergency) filed by Bobby B. Kirkendoll, 15 MOTION to Correct Procedural Posture filed by Bobby B. K irkendoll, 17 MOTION to Amend/Correct filed by Bobby B. Kirkendoll, 3 MOTION to Amend/Correct filed by Bobby B. Kirkendoll. It is ORDERED that the above-captioned case is DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted. Signed by District Judge Robert W. Schroeder, III on 9/20/2023. (slo)

Case 5:22-cv-00145-RWS-JBB Document 22 Filed 09/20/23 Page 1 of 6 PageID #: 223
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
BOBBY B. KIRKENDOLL,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendants.

§
§
§
§
§
§
§
§
§
§

Civil Action No. 5:22-CV-00145-RWS-JBB

ORDER
Plaintiff Bobby Kirkendoll, proceeding pro se, filed the above-captioned civil action
asserting that he should be allowed to challenge his federal conviction through the writ of habeas
corpus as it existed in 1789 rather than having to pursue a motion to vacate or correct sentence
under 28 U.S.C. § 2255. Docket No. 1. The case was referred to the United States Magistrate Judge
in accordance with 28 U.S.C. § 636.
Plaintiff complains that procedural barriers or circuit precedents concerning § 2255 have
caused him to be injured and in immediate danger because these barriers affect his liberty to be free
from unlawful detention. Docket No. 1 at 3–6. He contends that these barriers limit the relief he
can receive and thus prevent him from receiving an affirmative right or privilege in violation of the
Suspension Clause. Id. at 7.
Plaintiff goes on to state that § 2255 is the exclusive remedy by which federal prisoners can
attack their convictions, but the preconditions placed on this remedy affect the privilege of habeas
corpus as defined by the Framers of the Constitution. Id. at 6. He contends that he cannot seek
relief in habeas corpus absent a showing that a motion under § 2255 is inadequate or ineffective to
test the cause of his detention, but that to require him to complete a § 2255 proceeding would cause
months or years of delay. Id. at 8. Court records show that Plaintiff currently has a § 2255 action
pending in the Western District of Louisiana, his court of conviction. E.g., Docket No. 1 at 17.
In a motion to amend his complaint (Docket. No. 17), Plaintiff states that his claim is
against the Members of the 79th Congress, which met from January 3, 1945 to January 3, 1947, in

Case 5:22-cv-00145-RWS-JBB Document 22 Filed 09/20/23 Page 2 of 6 PageID #: 224
their official capacities. He asserts that he has been injured by the fact that this Congress enacted §
2255, apparently by removing his ability to seek habeas corpus relief absent a showing that the
remedy under § 2255 is inadequate or ineffective. Id.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
case be dismissed as frivolous and for failure to state a claim upon which relief may be granted.
Docket No. 18. The Magistrate Judge traced the history of § 2255 and the statutory codifications
of the writ of habeas corpus and observed that this statutory scheme has been repeatedly upheld
by the courts. Id. at 4–5. The Magistrate Judge determined that Plaintiff did not set out any viable
claim for relief and that to the extent Plaintiff sought to sue the Members of the 79th Congress for
enacting § 2255, such a claim is foreclosed by the Speech and Debate Clause. Id. at 6–7. The
Magistrate Judge also concluded that Plaintiff could not seek a declaratory judgment to the effect
that he can evade the requirements of § 2255 and that his claim that he cannot access habeas corpus
is in effect a Suspension Clause claim which is foreclosed by existing law. Id.
In his objections, Plaintiff asks that his lawsuit be changed to a civil action under Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), and that
the defendants be designated as “those who authorized petitioner to apply for relief under § 2255,
in [their] official capacity.” Docket No. 20 at 1. He also makes this same request in a separate
motion to amend, which raises the same arguments as he presents in his objections. Docket No.
21. Plaintiff states that his lawsuit is about “the Great Writ as it existed in 1789, when the
Constitution was adopted” and that § 2255 is a “subrogation to this right, regardless of who
authorized it to be used.” Id. at 2. Plaintiff asserts that Congress over-reached its authority by
enacting § 2255 and that he is seeking injunctive relief “to stop [ongoing] constitutional
violations.” Id. at 3.
Plaintiff states that he is attacking his conviction, but that a “conviction” is not completely
synonymous with “sentences” or “judgments.” Docket No. 20 at 3. He asserts that the sentencing
court lacks power to issue relief or to give a remedy under § 2255 “simply by having their inherited
[sic] powers limited by statute and [FED. R. CRIM. P.], and by default it becomes a legislative court.

Page 2 of 6

Case 5:22-cv-00145-RWS-JBB Document 22 Filed 09/20/23 Page 3 of 6 PageID #: 225
It grabs any kind of laws created by Congress and only looks to legislation rather than the
Constitution.” Id.
Plaintiff goes on to argue that § 2255 is not habeas corpus but a “separate remedial vehicle”
which frustrates the habeas corpus process. Id. He takes issue with the language of 28 U.S.C. §
2255(e), which states that an application for a writ of habeas corpus on behalf of a person 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,” asking who “authorized” him to apply for relief
under this section and claiming that this “authorization” was done without his consent. Id.
Next, Plaintiff acknowledges that his § 2255 motion is pending and says that he is not
seeking to circumvent the requirements of § 2255, but that he is seeking his constitutional right to
the writ of habeas corpus first. Id. at 4. He complains that the term “inadequate or ineffective” is not
defined by Congress, making it impossible for him to know the requirements. Id. Plaintiff also
denies that he is raising a Suspension Clause challenge, and again says that he is attacking his
conviction, not the sentence or judgment.
Plaintiff goes on to assert that there is a federal jurisdictional question because the Federal
Government tried and convicted him when the State of Louisiana had jurisdiction over the case.
Docket No. 20 at 8. He again maintains that § 2255 is not a habeas statute and complains that some
unknown entity “authorized” its use without his consent. Id. at 9. Plaintiff further argues that §
2255 is an “extra” remedy that he can use after he has been afforded his right to habeas corpus
and asks whether the Court is an Article III court while asserting it is “exercising powers that it has
not been delegated under the Constitution.” Id. at 10–11.
The Supreme Court has recently explained as follows:
Section 2255 is an outgrowth of the historic habeas corpus powers of the federal
courts as applied to the special case of federal prisoners. The First Judiciary Act
authorized the federal courts “to grant writs of habeas corpus for the purpose of an
inquiry into the cause of commitment,” with a proviso that such writs could “extend
to prisoners in gaol” only “where they [were] in custody, under or by colour of the
authority of the United States, or [were] committed for trial before some court of the
same, or [were] necessary to be brought into court to testify.” Act of Sept. 24, 1789,
Page 3 of 6

Case 5:22-cv-00145-RWS-JBB Document 22 Filed 09/20/23 Page 4 of 6 PageID #: 226
§ 14, 1 Stat. 82. In 1867, Congress expanded the federal courts’ habeas powers to
cover “all cases where any person may be restrained of his or her liberty in violation
of the constitution, or of any treaty or law of the United States.” Ch. 28, 14 Stat. 385.
For most of our Nation's history, a federal prisoner “claiming the right to be
released,” § 2255(a), in a collateral attack on his sentence would have relied on these
Acts and their successors.
That changed with the 1948 recodification and reorganization of the Judiciary Code.
See generally 62 Stat. 869. In enacting the present Title 28 of the United States Code,
Congress largely recodified the federal courts’ pre-existing habeas authority in §§
2241 and 2243, which, respectively, confer the power to grant the writ and direct the
issuing court to “dispose of the matter as law and justice require.” Id., at 964–965.
At the same time, however, Congress created § 2255 as a separate remedial vehicle
specifically designed for federal prisoners’ collateral attacks on their sentences. Id.,
at 967–968.
The “sole purpose” of this innovation, as this Court acknowledged a few years later,
“was to minimize the difficulties encountered in habeas corpus hearings by affording
the same rights in another and more convenient forum.” United States v. Hayman,
342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952); see also Davis v. United
States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (“[Section] 2255
was intended to afford federal prisoners a remedy identical in scope to federal habeas
corpus”); accord, United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60
L.Ed.2d 805 (1979); Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7
L.Ed.2d 417 (1962). Experience had shown that processing federal prisoners’
collateral attacks on their sentences through habeas proceedings—and, therefore,
through the judicial districts in which they were confined—resulted in “serious
administrative problems.” Hayman, 342 U.S., at 212, 72 S.Ct. 263. Most
significantly, a federal prisoner's district of confinement was often far removed from
the records of the sentencing court and other sources of needed evidence. Id., at
212–213, 72 S.Ct. 263. These difficulties were “greatly aggravated” by the
concentration of federal prisoners in a handful of judicial districts, which forced
those District Courts to process “an inordinate number of habeas corpus actions.” Id.,
at 213–214, 72 S.Ct. 263.
Section 2255 solved these problems by rerouting federal prisoners’ collateral attacks
on their sentences to the courts that had sentenced them. To make this change of
venue effective, Congress generally barred federal prisoners “authorized to apply for
relief by motion pursuant to” § 2255 from applying “for a writ of habeas corpus”
under § 2241. § 2255(e). But, in a provision that has come to be known as the saving
clause, Congress preserved the habeas remedy in cases where “the remedy by motion
is inadequate or ineffective to test the legality of [a prisoner's] detention.” Ibid.
Jones v. Hendrix, 143 S.Ct. 1857, 1865-66 (2023) (footnote omitted). Thus, Plaintiff’s contention
that § 2255 should be subordinate to habeas corpus and that the statute prevents him from exercising
his rights in habeas corpus is without merit. His pending motion under § 2255 allows him to
challenge his conviction in the convicting court, and he has offered nothing to show that this remedy
is inadequate or ineffective to test the legality of his detention. While Plaintiff complains that he
has been prosecuted by the Federal Government as well as the State of Louisiana for the same
Page 4 of 6

Case 5:22-cv-00145-RWS-JBB Document 22 Filed 09/20/23 Page 5 of 6 PageID #: 227
conduct, this complaint is foreclosed by the dual sovereignty doctrine. See Gamble v. United States,
139 S.Ct. 1960, 1965 (2019).
To the extent Plaintiff seeks to sue the Members of the 79th Congress, who presumably are
“those who authorized petitioner to apply for relief under § 2255,” the Magistrate Judge correctly
determined that such claim is barred by the Speech and Debate Clause. Plaintiff’s request to recast
his lawsuit as a Bivens action likewise lacks merit because Bivens claims are recognized only in
certain limited contexts, into which this case does not fall. 1 Plaintiff has not shown that he is entitled
to any type of relief in this case and his objections are without merit.
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. § 636(b)(1)
(providing that a district judge shall “make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”) The Court has
also carefully reviewed Plaintiff’s amended complaint, motions to further supplement or amend
the complaint, and motion to correct the procedural posture of the case. Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
objections are without merit. Accordingly, it is
ORDERED that Plaintiff’s objections (Docket No. 20) are OVERRULED. It is further
ORDERED that the Report and Recommendation of the Magistrate Judge (Docket No.
18) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-captioned case is DISMISSED WITH PREJUDICE as
frivolous and for failure to state a claim upon which relief may be granted. The dismissal of this

The Fifth Circuit has held that Bivens claims are currently recognized in only the following
factual situations: “(1) manacling the plaintiff in front of his family in his home and strip-searching
him in violation of the Fourth Amendment,” (2) “discrimination on the basis of sex by a
congressman against a staff person in violation of the Fifth Amendment,” and (3) “failure to provide
medical attention to an asthmatic prisoner in federal custody in violation of the Eighth Amendment.”
Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (citations omitted). The Fifth Circuit and the
Supreme Court have cautioned against extending Bivens to new contexts. Byrd v. Lamb, 990 F.3d
879, 881 (5th Cir. 2021), citing Hernandez v. Mesa, 140 S. Ct. 735, 744 (2020); Ziglar v. Abbasi, 137
S. Ct. 1843, 1861 (2017).
1

Page 5 of 6

Case 5:22-cv-00145-RWS-JBB Document 22 Filed 09/20/23 Page 6 of 6 PageID #: 228
lawsuit shall not affect Plaintiff’s right to challenge his conviction or sentence through any lawful
means. It is further
ORDERED that any pending motions in the above-captioned case (including but not limited
to Docket Nos. 2, 3, 7, 9, 10, 11, 15, 16, 17, and 21) are DENIED. A final judgment will be entered
in this case in accordance with this Order.
So ORDERED and SIGNED this 20th day of September, 2023.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

Page 6 of 6