Edwards v. Upton

Filing 11

Memorandum Opinion and Order: Came on for consideration the application of Connie Edwards for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The court, having considered the application, the response of respondent, Warden Jody R. Upton, the record, the reply, and applicable authorities, finds that the application must be dismissed. (see order for further specifics) (Ordered by Judge John McBryde on 3/6/2018) (mpw)

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IN THE UNITED STATES DISTRICT copRT
NORTHERN DISTRICT OF TEXAS !
FORT WORTH DIVISION
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CONNIE EDWARDS,

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§
§

Applicant,

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vs.

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NO. 4:18-CV-003-A

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JODY R. UPTON, WARDEN,

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§

Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the application of Connie Edwards
for writ of habeas corpus pursuant to 28 U.S.C.

§

2241. 1 The

court, having considered the application, the response of
respondent, Warden Jody R. Upton, the record,

the reply,' and

applicable authorities, finds that the application must be
dismissed.
I.
Background
On October 31, 2012, applicant was named along with nine
others in a 23-count third superseding indictment in the District

'The document filed by applicant reflects that it is a "petition" and that she is "petitioner."
However, the statute itself, 28 U.S.C. §2241, refers to "application" as being the proper nomenclature.
2

.

NOIZTJTERN UlSTl' ::·~· :;F Tr\X.\!3

0n March 5, 2018, the clerk filed a letter addressed to the undersigned, which the court is
interpreting as applicant's reply. In it, applicant says that she has read the government's response and that
the facts alleged are inaccurate. She fails to point out why she says that is so. The facts alleged by the
government are supported by the appendix. The facts are within applicant's knowledge and there is no
reason she could not have timely filed a more complete reply had she chosen to do so. Fmther,
appointment of counsel, as sought by applicant, is not appropriate or required in a case like this one.

of Kansas charging her in count 1 with conspiracy to distribute
and possess with intent to distribute controlled substances with
death and serious bodily injuries resulting from the use of such
substances, in violation of 21 U.S.C.
(b) (2) and 21 U.S.C.

§

§

841(a) (1),

(b) (1) (C), and

846; in count 2 with knowingly and

intentionally distributing a mixture and substance containing
hydrocodone, methadone, and carisoprodol with death and serious
bodily injuries resulting from the use of such substances, in
violation of 21 U.S.C.

§

84l(a) (1),

(b) (1) (C), and (b) (2); in

counts 3 and 4 with knowingly and intentionally distributing a
controlled substance in violation of 21 U.S. C.

§

841 (a) ( 1) and

(b) (1) (C); in counts 5, 15, and 17 with maintaining premises used
for unlawfully storing, using, and distributing controlled
substances, in violation of 21 U.S.C.
count 20 with money laundering,
§

§

856(a) (1) and (a) (2); in

in violation of 18 U.S.C.

1956(h); in count 21 with possession with intent to distribute

oxycodone, in violation of 21 U.S.C.

§

841(a) (1) and (b) (1) (C);

in count 22 with possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C.

§

924(c); and,

count 23 with conspiracy to intimidate a federal witness, in
violation of 18 U.S.C.

3

The "Doc.

§§

371 and 1512. Doc. 3 9 at 1-23.

"reference is to the number of the item on the docket in this action.
2

in

Applicant signed a petition to enter plea of guilty, Doc. 9
at 24-30, and a plea agreement pursuant to Fed. R. Crim. P.
ll(c) (1) (C), id. at 31-46, pleading guilty to count 1 of the
third superseding indictment. In exchange, the government agreed
to move to dismiss the remaining counts of the indictment, id. at
32, and not to file any additional charges against her arising

out of the facts forming the basis for the indictment, id. at 41.
The court accepted the plea agreement and imposed the agreed
sentence of twenty-five years' incarceration. Id. at 47, 49.
Despite having waived the right to appeal and to
collaterally attack the judgment, id. at 42, applicant filed a
motion under 28 U.S.C.

§

unconstitutional sentence
States,

[570 U.S.

17, 2015,

99

2255 to obtain relief "from an

. as discussed in Alleyne v United

(2013)] ."Doc. 9 at 54. By order signed June

the motion was denied. Id. at 80. She now seeks relief

pursuant to

§

2241 by way of the "savings clause" of § 2255 (e).

II.
Applicable Legal Standard
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A federal prisoner may challenge the legality of her
detention under
of

§

§

2241 if she falls within the "savings clause"

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2255, which states:

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An application for a writ of habeas corpus in behalf of
a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be

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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.
28 U.S.C.

§ 2255(e). Hence, the court may consider an application

attacking a sentence under

§

2241 "if the [applicant) establishes

that the remedy under § 2255 is inadequate or ineffective."
Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (emphasis in
original).
"Courts have found a remedy under 28 U.S.C.

2255 to be

§

inadequate or ineffective only in extremely limited
circumstances." Pack v. Yusuff, 218 F.3d 448, 452

(5th Cir.

2000) (quoting Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.
1999)). The bar against filing successive§ 2255 motions does not
render

§

2255 inadequate or ineffective so as to allow an

applicant to invoke the savings clause of§ 2255(e). Tolliver,
211 F.3d at 878. Instead, the savings clause applies only to a
claim "(i) that is based on a retroactively applicable supreme
Court decision which establishes that the [applicant) 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 [applicant's)

trial, appeal, or first § 2255

motion." Reyes-Requena v. United States, 243 F.3d 893, 904

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(5th

Cir. 2001). The first prong is generally considered the "actual
innocence" requirement. Id.
When the applicant fails to make the stringent showing
required to proceed under the savings clause, the court properly
dismisses the motion. Padilla v. United States, 416 F.3d 424, 427
(5th Cir. 2005).
III.
Analysis
Applicant argues that she is able to meet the savings clause
test. She is mistaken. The case upon which applicant relies,
Burrage v. United States, 134 S. Ct. 881

(2014), was decided on

January 27, 2014, before applicant filed her motion under

§

2255.

And, in fact, applicant relied on Burrage in support of her
motion under

§

2255. Doc. 9 at 62-64. That Burrage may not have

been recognized at the time as being retroactively applicable did
not foreclose litigation of the claim. Pearson v. Warden Canaan
USP, 685 F. App'x 93, 95-96

(3d Cir. 2017). In any event,

applicant has not shown that the claim was foreclosed by circuit
precedent. Rather, she only cites to the district court opinion
denying her motion under

§

2255, Doc. 1 at 6, which in turn did

not cite any Tenth Circuit cases for the proposition that Burrage
was not retroactively applicable. Doc. 9 at 72-73.

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Even assuming relief had been foreclosed at the time
applicant filed her motion under

§

2255, she has not shown that

she is actually innocent of the crime for which she was
convicted. In fact, applicant argues that "she may have been
convicted of a nonexistent offense." Doc. 1 at 7 (emphasis
added) . And, she says that once the court orders evidence
produced "it will likely be established" that the drugs she sold
were not the "but for" cause of death as charged. Id. at 7-8.
The record establishes, as applicant admitted, that
applicant conspired with others to distribute a mixture and
substance containing oxycodone, hydrocodone, methadone, morphine,
and methamphetamine. Doc. 9 at 24. And, in particular,
William Thomas Powell purchased hydrocodohe, methadone
and carisoprodol from [applicant]. [P]rescription pills
[had been taken] and crushed []into a powder which was
sold to Powell as purported methamphetamine.
Later that evening Powell purchased prescription pills
from [applicant] .
. Powell then ingested the pills
and injected the substance he believed to be
methamphetamine intravenously.
. Powell died as a
result of polydrug toxicity. Toxicology confirmed the
substances which were the cause of Powell's death were
methadone, hydrocodone and carisoprodol.
Doc. 9 at 33. There is simply no basis for applicant to claim, as
she now does, that the drugs she sold Powell were not the "but
for" cause of his death.
Finally, as the government notes, Doc. 8 at 10, even if
applicant was able to meet the test, she waived her right to
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collaterally attack her conviction and sentence as part of her
plea agreement. Doc. 9 at 42. An informed and voluntary waiver of
post-conviction relief is effective. United States v. Wilkes, 20
F.3d 651, 653

(5th Cir. 1994). The sentencing court has

determined the waiver to be enforceable and further determined
that applicant did not receive ineffective assistance of counsel.
Doc. 9 at 74-80.
IV.

Order
The court ORDERS that applicant's motion be, and is hereby,

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dismissed.

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SIGNED March 6, 2018.

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