Creech v. Upton

Filing 8

OPINION AND ORDER... For the reasons discussed, the Court DISMISSES Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. The Court further DENIES a certificate of appealability because Petitione r has neither alleged nor demonstrated that she is entitled to proceed under 28 U.S.C. § 2241 nor has she made a substantial showing of the denial of a constitutional right. See Order for further specifics. (Ordered by Judge Terry R Means on 6/3/2014) (krg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
LISA CREECH,
Petitioner,
V.
JODY R. UPTON, Warden,
FMC-Carswell,
Respondent.

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Civil Action No. 4:14-CV-281-Y

OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by Petitioner, Lisa Creech, a
federal prisoner confined in FMC-Carswell, against Jody R. Upton,
warden of FMC-Carswell, Respondent.

No service has issued upon

Respondent.
After having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should be
dismissed for lack of jurisdiction.
I.

Factual and Procedural History

On April 23, 2013, Petitioner pleaded guilty in the United
States District Court for the Eastern District of Oklahoma to one
count of manufacturing methamphetamine on premises where children
are present or reside, and, on December 11, 2013, she was sentenced
to a 168-month term of imprisonment. (Minutes and J. in a Criminal
Case, United States v. Creech, Criminal Docket No. CR-13-00027-002JHP, ECF Nos. 56, 121, 123.) Petitioner waived her right to appeal
and has not pursued a § 2255 motion in the convicting court.

(Pet.

3-4; ECF No. 5.)
Petitioner raises four grounds for habeas relief in this
petition wherein she claims, generally, that (1) she was convicted
by the media, (2) her trial counsel was ineffective, (3) there was
no evidence to support her conviction, and (4) the government
manufactured

the

case

against

her.

(Pet.

5-6,

Petitioner seeks an acquittal and immediate release.

ECF

No.

5.)

(Pet. 7, ECF

No. 5.)
II.

Discussion

28 U.S.C. § 2243 authorizes a district court to summarily
dismiss a frivolous habeas-corpus petition prior to any answer or
other pleading by the government.1

A habeas petition under § 2241

is generally used to challenge the manner in which a sentence is
executed and a § 2255 motion is the primary means under which a
federal

prisoner

may

conviction or sentence.

collaterally

attack

the

legality

of

a

See Cox v. Warden, Fed. Det. Ctr., 911

F.2d 1111, 1113 (5th Cir. 1990).

A § 2241 petition attacking a

federal conviction or sentence may only be considered if the
petitioner establishes that the remedy under § 2255 is inadequate
or ineffective.

Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.

1

Section 2243, governing applications for writ of habeas corpus, provides:

A Court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue an
order directing the respondent to show cause why the writ should not
be granted, unless it appears from the application that the
applicant or person is not entitled thereto.
28 U.S.C. § 2243 (emphasis added).

2

2000).

In order to meet this burden, a petitioner must show that

(1) the petition raises a claim that is based on a retroactively
applicable Supreme Court decision, (2) the claim was foreclosed by
circuit law at the time when it should have been raised in the
petitioner’s trial, appeal, or first § 2255 motion, and (3) that
retroactively applicable decision establishes that the petitioner
may have been convicted of a nonexistent offense.

Garland v. Roy,

615 F.3d 391, 394 (5th Cir. 2010); Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001).
Although Petitioner does not raise a savings-clause claim, it
is clear that she cannot meet the three requirements from the face
of the petition.
Supreme

Court

Petitioner cites no retroactively applicable

decision

that

would

arguably

decriminalize

her

conduct nor were her claims foreclosed by Fifth Circuit law at the
time of her trial.

Furthermore, although Petitioner waived her

right to appeal, she has not yet filed an initial § 2255 motion.
Thus, Petitioner cannot show that the remedy by § 2255 motion is
inadequate or ineffective to test the legality of her conviction.
A § 2241 petition is not an alternative to the relief afforded by
motion in the sentencing court under § 2255.

Pack v. Yusuff, 218

F.3d 448, 452 (5th Cir. 2000) (quoting Williams v. United States,
323 F.2d 672, 673 (10th Cir.1963)). Because Petitioner’s claims do
not fall within the savings clause of § 2255(e), they are not
cognizable in a § 2241 petition.

3

For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
for lack of jurisdiction.
of

appealability

because

The Court further DENIES a certificate
Petitioner

has

neither

alleged

nor

demonstrated that she is entitled to proceed under 28 U.S.C. § 2241
nor

has

she

made

a

substantial

showing

of

the

denial

of

constitutional right.
SIGNED June 3, 2014.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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a