Cao v. Marquez
Filing
13
Memorandum Opinion and Order. The Court finds that petitioner's claims fail to meet the requirements of the savings clause under Section 2255, and his claims are not otherwise cognizable under Section 2241. It is therefore ordered that petitioner John Hoang Cao's petition for a writ of habeas corpus under 28 U.S.C. § 2241 is dismissed for lack of subject-matter jurisdiction. (Ordered by Judge James Wesley Hendrix on 5/17/2021) (jak)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ABILENE DTVISION
JOHN HOANG CAO.
Plaintiff,
No.
1:20-CV-080-H
WARDENMARQUEZ,
Defendant.
MEMORANDUMO
ONAND ORDER
Before the Court is a form petition for writ of habeas corpus purcuant to 28 U.S.C.
$
2241 fnedby petitioner, John Hoang Cao, a federal prisoner confined at FCI-Big Spring,
against respondent, Warden Marquez, the warden of FCI-Big Spring. Dkt. No.
seeks
relief under the "savings clause" of 28 U.S.C.
$
1. Cao
2255, contending that his
sentence was calculated from inaccurate information in his Presentence Investigation
Report. Because Cao is not challenging the manner in which his sentence is being executed
or the prison authorities' determination of its duration, and he cannot show that 28 U.S.C.
0 2255 is
inadequate or ineffective to test the legality of his detention, his petition must be
dismissed for lack of jurisdiction.
l.
Factual and Procedural Ilistory
Cao pled guilty to Conspiracy to Possess with Intent to Distribute
Methylenedioxymethamphetamine Qr{DMA) and Cocaine in violation of 21 U.S.C.
$0
841@XIXA)(ii), 841(bX1XC), and 846, and Conspirary to Launder Money in violation of
18
U.S.C. $ 1956(tr). The United States District Court for the Northem Disftict of Florida
sentenced Cao to 480- and 240-month concurrent terms of imprisonment. See United States
r.
Cao,
No. 3:05-CR-099-1, Dkt. No. 342 O{.D. Fla. Feb. 3,2006);
United States v. Cao,
No.
3:05-CR-101-1/LAC, Dkt. No. 44 (N.D. Fla. Feb. 3,2006). Cao's conviction and sentence
were confirmed on appeal, and the sentencing court has denied or dismissed multiple post
conviction relief motions.
See Unired States
t
Hoang Cao, No. 3:05CR99/LAC/EMT, 2019
WL5978921, at*1 (N.D. Fla. Oct. 8,2019) (summarizinghistory). In2017, Cao's sentence
was reduced from 480 to 292 months.
will
Id. If
Cao receives all projected good-time credit, he
be released from BOP custody on August 28, 2026.I
Cao now challenges his sentence pursuant to Section 2241 and Section 2255's
savings clause based on the alleged recantation of a wimess's testimony against
him. Aa
affidavit dated November 3, 2016, from the witness in question is appended to the petition.
Dkt. No.
1
at 17. Cao alleges that his Presentence Investigation Report (PSR) contained
false information which has impacted his incarceration time, his custody classffication, and
his good-time credit. Specifically, he claims that the PSR inaccurately reflects the drug
quantities with which he was involved, improperly attributes him with a leadership role
enhancement, and improperly omits a reduction for acceptance of responsibility. Id. at5.
Respondent claims Cao's petition should be dismissed for lack ofjurisdiction because
a Section 2241 petition is not the proper vehicle for challenging the inclusion of allegedly
incorrect information in a PSR. Dkt. No. 7 at 2-5. In his reply, Cao concedes that the
Court lacks jurisdiction to resolve three of his requests. Dkt. No. 12 at 1 (refening to Dkt.
No. 1at7,Ifi1,6,7). But he requests that the Court liberally construe all remaining claims
as challenging the
BOP's execution ofhis sentence and calculation ofhis release date. Id.
(referring to Dkt. No . 1 at 7 , 11\ 2-5)
.
Sae Bureau of Pisons, Inmate Locator, a.vatlable at https://www.bop.govlimateloc/ (last visited
Apr.27,2021).
1
2
2
The Court lacks jurisdiction because Cao's claims fl6 not satisff
uniler Section 2241 or Section 2255's savings clause.
tle requirements
Cao seeks habeas corpus relief under 28 U.S.C. $ 2241based on allegations that his
PSR contains false information. Section 2241, however, is not the proper vehicle for
bringing such claims. Section 2241 petitions are generally used to challenge the manner in
which a sentence is executed-for example, for attacking how the BOP calculates
a release
date when taking into account things like presentence time in custody. See Tolliver
211 F.3d 876,877 (5th Cir. 2000); United States v. Cleto,956F.2d 83, 84 (5th Cn.
tr.
Dobre,
D92). By
contrast, 28 U.S.C. $ 2255 provides the primary means by which a prisoner may collaterally
attack a federal sentence and is the appropriate remedy for certain errors that occurred at, or
prior to, sentencing. Logan
r
Warden Fed.
Cor.
Complex
(5th Cir. 2016) (ciing Padilla v. United States, 416
Beaumottt,6MF. App'x280,280
F .3d,424,
425 (sth Cir. 2005).
The Fifth Circuit has made clear that a Secion 2241petition is not the proper vehicle
for challenging the inclusion of allegedly incorrect information in aPSR. Pawlik
Maiorana, 687
F
. App'x 421, 422 (sth Cn. 2017). In Pawlik
v.
y.
Maiorana, the petitioner
challenged the inclusion of allegedly inconect information in his PSR, which had adversely
affected his confinement by precluding him from incarceration in a minimum-securiry
prison and from entry into a halfivay-house program. Id. at 421. The Fifth Ckcuit rejected
the petitioner's attempt to frame his argument as challenging the execution of his sentence
because his challenge to the correctness of factual findings in his PSR was actually directed
at an error that allegedly occurred at or before sentencing. Id. at 422;
see
also Green v. Riwrs,
843 F. App'x 618,619 (5th Cir. 2021) (holding that Section 2255, not Section 2241, is the
proper vehicle to challenge alleged errors at sentencing).
3
The same is true here. Cao's claims are not cognizable under 28 U.S.C.
$ 2241
because he is attacking erors that allegedly occurred at or before sentencing-namely the
inclusion of incorrect information in his PSR. Similar to the petitioner
n
Pawlik, here, Cao
charactedzes his claims as challenging the execufion of his sentence and the BOP's
1
calculation ofhis release date. Dkt. No. 12 at
But by contesting the corectness of factual
findings in his PSR, he "acnrally attacls the manner
which is improper under Section 2241. Kinder
v.
il
which his sentence was determined, "
Purdy, 222
F
.3d 209, 212 (5th Cir. 2000).
A Section 2241 petition that challenges errors related to a petitioner's conviction or
sentence should be dismissed or construed as a Section 2255 motion. See Tolliter,211 F.3d
at 877-78. This Court lacks jurisdiction to construe the instant petition as a Section 2255
motion, however, because the Eleventh Circuit has not granted petitioner authorization to
fi.le a successive 2255
moion.2
See
Hooker v. Sivby, 187 F.3d 680, 681-82 (5th
Cil. 1999)
(holding that the district court lacked jurisdiction to construe a Section 2241 petiion as a
Section 2255 motion because petitioner had not received prior authorization Iiom the court
of appeals to frle a successive Section 2255 motion). Additionally, a Section 2255 motion
must be flled in the Northem District of Florida, where Cao was sentenced.
See Benson y.
Justice,5l7 F.3d 486, 487 (5th Cn.2001) (finding that the disrict court did not have
jurisdiction to construe
a
petition
as a Section 2255
motion, where the prisoner was
sentenced in a different district).
Despite the above authority, Cao could properly utilize Section 2241 if he could
satisft Section 2255's savings cause. While Section 2241 is generally used to challenge the
In re John Hoang Cao, No. L9-127 68-H,2019 U.S. App. LEXIS 23906, at*2 (l lth Cir. Attg.9,2079)
(denying leave to file a second ot successive Section 2255 motion).
2
4
execution ofa prisoner's sentence, the Court may nevertheless consider Cao's petition
challenging his sentence if he is able to show that Section 2255 is "inadequate or ineffective"
to challenge his sentence:
An application for a writ ofhabeas corpus in [sic] behalf of a prisoner who is
authorized to apply for reliefby motion pu$uant 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 inefeaiye to
test the legalib) ofhis detention.
28 U.S.C. $ 2255(e) (emphasis added); Chistopher t. Miles, 342F .3d 378, 381 (5th Cir. 2003)
(citing Reyes-Requena v. United States,243
F .3d
893, 900-01 (5th Cir. 2001)). Thus, when
invoking the savings clause, the petitioner has the burden of proving that remedies under
Section 2255 are "inadequate or ineffective to test the legality ofhis detention." ReyesRequena, 243 F .3d at 901
(citng
Pack t,. Yusuf, 218 F .3d 4J.8, 452 (5th Cir.
2000).
To show that a Section 2255 motion is either ineffective or inadequate to test the
legality of his detention, Fifth Circuit precedent requires the petitioner to demonstrate that:
(1) his claim is based on a retroactively applicable Supreme Court decision;
(2) the Supreme Court decision establishes that he was "actually innocent" of
the charges against him because the decision decriminalized conduct for
which he was convicted; and (3) his claim would have been foreclosed by
existing circuit precedent had he raised it at trial, on direct appeal, or in his
original $ 2255 petition.
Chnstopher,342F.3d at382 (5thCir.2003) (crtngReye*Requena,243 F.3dat904 andlefers
r
Chandler, 253 F .3d 827, 830
(sth Cir. 2001));
but see Beras v. Johnson, 97 8 F .3d 246, 257
(5th Cir. 2020) (Oldham, J., concurring) (calltng for Reyes-Requena tobe overnrled);
Hammoud v. Ma'at,994F.3d734,734 (5th Cir. 2021) (ordering rehearing en banc in a case
that
will
examine Reyes-Requena's reach). "Neither a prior unsuccessful $ 2255 motion, as in
this instance, nor an inability to meet the requirements for pursuing a successive $ 2255
5
motion renders the
$ 2255
remedy unavail able." Tores v. Young, 457
F
. App'x
427 , 429
(sth
Cn.2012) (aing Tolltuer,211 F.3d at 878).
Petitioner neither asserts nor demonstrates that he can satisfu any of the
requirements to pursue relief through the savings clause. Cao points to no retroactively
applicable Supreme Court decision establishing that he was convicted ofa nonexistent
offense. He merely states *rat Section 2255 is inadequate based on the Privary Act,3 which
is not the proper means by
which a prisoner may collaterally attack his conviction or
sentence. Garza v. Pearson, No. 5:08-CV-300-DCB-MTP, 2009 WL 2500116, at *2 (S.D.
Miss. Aug. 13,2009).
Nor does Cao in any way seek to establish that he is actually innocent ofthe charges
against
him. Instead, he asserts his conduct was insufficient to support his punishment
being increased under the guidelines. A claim of acnral innocence of certain drug quantities
or a sentencing enhancement is not a claim of actual innocence of the crime of conviction.
See
Houston v. Upton, 460 F.
App'x 419, 420 (sth Cn. 2012) (holding that
a claim of actual
innocence of a sentencing enhancement does not satisfu the savings clawe); McNeal
v.
Martin,424F. App'x322,323 (5th Cir. 20ll) (holding that the prisoner's claim of actual
innocence of career-offender sentencing enhancement was not cognizable under Section
2241); Gallegos t. Castaneda, No. 1:16-CV-133-O,2017
WL
4351079, at *2 (N.D. Tex. Sept.
29,2017) (holding that a Section 2241 petition challenging imposition of the leadership role
enhancement under USSG $ 3B1.1 did not invoke the savings clause). Thus, because Cao's
claims challenge only the validity of his sentence, he is unable to carry his burden of proving
The Court notes that Cao cites 5 U.S.C. $ 552(afthe Freedom of Information
to the Privacy Act, irstead of 5 U.S.C. $ 552a. See Dkt. No. 1 tlfl 10, 14.
3
6
Act-in
reference
that his Section 2241 petiriron falls under the savings clause of Section 2255(e).
Consequently, Cao is not entitled to relief under the savings clause ofSection225l, andhis
petition must be dismissed for want of judsdiction. Chistopher, 342 F .3d at
379
, 385; Lang v
Wilson,No.4:16-CV-1018-O, 2018 WL 684890, at *3 (N.D. Tex. Feb. 1, 2018).
3.
Cao is not entitled to relief under the Privacy Act.
Finally, insofar
$ 522a, his
as Cao
seek injunctive relief under the Privary Act of
5
U.S.C.
claim is without merit. This is because prisoners are not entitled to injunctive
relief to correct allegedly inaccurate information maintained in a PSR.a 5 U.S.C.
0 552a(D(2); 28
C.F.R. $ 76.97; Datis t. Quintana, No. 1:06-CV-721, 2008 WL 2462981, at
*1 (8.D. Tex. June 13, 2008), affd, 334F . App'x 633 (5th Cn. 2009);
Prob.
see
ako Wite v. U.S.
ffice,148 F.3d 7724, ll25 @.C. Cir. 1998) @arring petitioner's claim for an
amendment of his PSR). Thus, to the extent Cao's petition includes a claim under the
Privacy Act, such claim is also dismissed.
4.
Conclusion
The Court finds that petitioner's claims fail to meet the requirements of the savings
clause under Section 2255, and his claims are not otherwise cogrrizable under Section 2241.
It
is therefore ordered that petitioner John Hoang Cao's petition for a
writ ofhabeas corpus
under 28 U.S.C. $ 2241 is dismissed for lack of subject-matter jurisdiction.
Section 552aO(2) permits federal agencies to enact regulations exempting themselves from various
provisions of the Privary Act. Putsuant to 28 C.F.R. $ 16.97, the Bureau of Prisons exempted its
Central Record System, where pre-sentence reports are maintained, fol the provisions of the Act.
Another regulation expressly exempts presentence investigation reports that originated v/ith the
courts from the amendment provisions of the Privary Act. See 28 C.F.R. $ 16.46(f)(3).
a
7
So ordered on May
l? , 202t.
S
YHENDRIX
D STATES DISTRICT JUDGE
8
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