Lopez v. United States of America

Filing 4

OPINION AND ORDER... Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by petitioner, Ernest Lopez, a federal prisoner confined in FMC-Fort Worth, against the United States of America, 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. No service has issued upon Respondent (Ordered by Senior Judge Terry R Means on 9/25/2017) (wxc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ERNEST LOPEZ,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 4:17-CV-738-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, Ernest Lopez, a
federal prisoner confined in FMC-Fort Worth, against the United
States

of

America,

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. No
service has issued upon Respondent.
I.

Factual and Procedural History

On December 9, 2011, pursuant to a plea agreement, Petitioner
was sentenced to a term of 262 months’ imprisonment in the Austin
division of the United States District Court for the Western
District

of

Texas

for

conspiracy

to

possess

with

intent

to

distribute one kilogram or more of heroin. (J., United States v.
Lopez, U.S. Pacer, Criminal Docket for Case No. 1:11-cr-360-SS-5,
ECF No. 519.) Petitioner was sentenced as a career offender under
§ 4B1.1 of the United States Sentencing Guidelines based on two

prior Texas state convictions for delivery of heroin. (Pet. 1, ECF
No. 1.) In this petition, Petitioner asserts that in light of the
United States Supreme Court decision in Mathias v. United States,
136 S. Ct. 2243 (2016), and subsequent Fifth Circuit opinions in
Hinkle v. United States, 832 F.3d 569 (5th Cir. 2016 ), and United
States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), establishing that
his predicate offenses “could or cannot serve for career offender
enhancement under U.S.S.G. 4B1.1,” he is actually innocent of being
a career offender and the sentence imposed. (Pet. 1-5, 7-10.)
Petitioner raised the same claim in a § 2255 motion in the
convicting court, which was dismissed on April 5, 2017, with
prejudice, as time-barred. (Mot. & Order, United States v. Lopez,
Criminal Docket for Case No. 1:11-cr-00360-SS-5, ECF Nos. 813 &
820.) Petitioner also raised the same claim in a prior federal
habeas petition brought in this Court pursuant to § 2241. (Pet.,
Lopez v. United States of America, Civil Docket for Case No. 4:17cv-00714-A, ECF No. 1.) The prior habeas petition was construed as
a § 2255 motion and transferred to the convicting court where it
was dismissed on September 14, 2017, without prejudice an as
unauthorized successive § 2255 motion. (Order, Criminal Docket for
Case No. 1:11-cr-00360-SS-5, ECF No. 832.) In this second habeas
petition, Petitioner asserts that his claim is now “ripe for the
Court’s review” under § 2241, as his attempt to obtain relief under
§ 2255 has been unsuccessful and he can satisfy two of the three

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requirements to invoke § 2255(e)’s so-called “savings clause.”
II.
Title

28

U.S.C.

§

Discussion

2243

authorizes

a

district

court

to

summarily dismiss a frivolous habeas-corpus petition prior to any
answer or other pleading by the government.1 Typically, § 2241 is
used to challenge the manner in which a sentence is executed. See
Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). Section 2255 is
the primary means under which a federal prisoner may collaterally
attack the legality of his conviction or sentence. See Cox v.
Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). A §
2241

petition

attacking

a

federally

imposed

sentence

may

be

considered if the petitioner establishes that the remedy under §
2255 is inadequate or ineffective to test the legality of his
detention. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000). The burden of demonstrating the inadequacy of the § 2255
remedy rests with the petitioner. See Jeffers v. Chandler, 253 F.3d
827,

830

(5th

Cir.

2001).

In

order

to

meet

this

burden,

a

petitioner must show that (1) his claim is based on a retroactively
applicable Supreme Court decision, (2) his claim was foreclosed by

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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).

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circuit law at the time when the claim should have been raised in
his

trial,

appeal,

or

first

§

2255

motion,

and

(3)

that

retroactively applicable decision establishes that he may have been
convicted of a nonexistent offense. See Garland v. Roy, 615 F.3d
391, 394 (5th Cir. 2010); Reyes-Requena v. United States, 243 F.3d
893, 904 (5th Cir. 2001).
Petitioner asserts that “being sentenced as a career offender
is the same thing as being convicted for a non-existent offense,”
and, as such, he can meet the second and third requirements above
because his claim under Mathias was foreclosed by Fifth Circuit law
at the time when the claim could have been raised at trial, on
appeal, or a § 2255 motion and Mathias establishes that he was
convicted

for

a

nonexistence

offense.

(Pet.

2,

ECF

No.

1.)

Petitioner cites to Eleventh Circuit case law in support of his
argument, however the Fifth Circuit has repeatedly made clear that
a petitioner’s claim that he is actually innocent of the careeroffender sentencing enhancement does not raise a claim of actual
innocence sufficient to meet the savings clause of § 2255. See
Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000), cert.
denied, 531 U.S. 1132 (2001) (providing claim of actual innocence
of a career-offender enhancement is not properly raised in § 2241
petition because petitioner is not claiming actual innocence of
crime of conviction, only of the enhancement); Wiwo v. Medina, 491
F. App’x 482, 483 (5th Cir. 2012) (same); McCorvey v. Young, 487 F.

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App’x 928, 928 (5th Cir. 2012), cert. denied, 133 S. Ct. 1657
(2013) (same); Youreev. Tamez, 471 F. App’x 387, 387 (5th Cir.
2012), cert. denied, 568 U.S. 1126 (2013) (same). Accordingly,
Petitioner cannot rely on the savings clause of § 2255 on this basis.
Petitioner also asserts that, “due to the fact that even the
Government states the guideline’s calculation in [his] case is
arguably incorrect following Kinkle and Tanksley,” he will be left
with no remedy for the clear wrong that has been done to him if
relief under § 2241 is not available. (Pet. 3, ECF No. 1.) A § 2241
petition however is not an alternative to the relief afforded by
motion in the sentencing court under § 2255. See Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000) (quoting Williams v. United
States, 323 F.2d 672, 673 (10th Cir.1963)). Petitioner cannot rely
on § 2241 because his prior § 2255 motions were unsuccessful or to
avoid procedural hurdles presented under § 2255, such as the oneyear statute of limitations or the restriction on filing second or
successive

motions

to

vacate.

See

Jeffers,

253

F.3d

at

830

(providing prior unsuccessful § 2255 motion or the inability to
meet the statute’s second or successive requirement does not make
§ 2255 inadequate or ineffective); Pack, 218 F.3d at 453 (providing
prior,

unsuccessful

§

2255

motion,

the

limitations

bar,

and

successiveness do not render the § 2255 remedy inadequate or
ineffective); Tolliver, 211 F.3d at 877 (providing petitioner
cannot circumvent the restriction on filing successive § 2255

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motions with § 2241 petition). Thus, the fact that Petitioner’s
first § 2255 motion was barred under the statute of limitations and
his second § 2255 motion was dismissed under the restriction on
filing successive motions to vacate does not render the § 2255
remedy inadequate. Petitioner has not met all three criteria
required to invoke the savings clause of § 2255 as to the claim
presented in this habeas-corpus proceeding. The Court is therefore
without jurisdiction to consider the petition. See Christopher v.
Miles, 342 F.3d 378, 385 (5th Cir. 2003). Because Petitioner’s
claim does not fall within the savings clause of § 2255(e), it is
not cognizable in a § 2241 petition.
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.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. The certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
the

district

court’s

assessment

of

the

constitutional

claims

debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th

6

Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies the petition on procedural grounds
without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Therefore,
a certificate of appealability should not issue.
SIGNED September 25, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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