White v. United States of America

Filing 8

MEMORANDUM AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus. Objections to M&R due by 2/17/2015(Signed by Magistrate Judge Jason B. Libby) Parties notified. Copy mailed to petitioner w/ receipt card. (lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DANIEL ROBERT WHITE
Petitioner
VS.
UNITED STATES OF AMERICA

§
§
§
§ CIVIL ACTION NO. 2:14-CV-483
§
§

Respondent
MEMORANDUM AND RECOMMENDATION
Petitioner Daniel Robert White (White) is in the custody of the Bureau of Prisons
at Three Rivers, Live Oak, Texas.1 (D.E. 1). He filed this pro se petition for writ of
habeas corpus seeking to have his conviction vacated. His petition was filed pursuant to
28 U.S.C. § 2241. For the reasons stated, it is respectfully recommended that Petitioner’s
cause of action be dismissed because the relief he seeks can be granted only through a
petition brought pursuant to 28 U.S.C. § 2255 in the Eastern District of Texas.
I.

JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 2241. Lee v. Wetzel, 244 F.3d

370, 373 n. 3 (5th Cir. 2001); 28 U.S.C. § 124(b)(6).
II.

BACKGROUND
White pled guilty in 2006 to the Superseding Indictment that charged him with

possession of a firearm, a 12 gauge shotgun, by a felon pursuant to 18 U.S.C. §
1

A habeas corpus petition should be directed to the Warden of the prison in which the petitioner is held. The
warden at Three Rivers where White is currently incarcerated is Keith Roy. White filed his petition against the
United States.

1/7

922(g)(1).2 The indictment was brought in the district court of the Eastern District of
Texas, Cause No. 1:05-CR-00127. (D.E. 59). He was sentenced to 193 custody months in
July 2006. (D.E. 73).3 White appealed to the Fifth Circuit which affirmed his conviction
and sentence in June 2007. United States v. White, No. 06-41180 (5th Cir. June 21, 2007)
(per curiam) (designated unpublished). White’s sole issue on appeal challenged the

2

Subpart (g)(1) provides that “It shall be unlawful for any person—who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year; . . .[to] possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign
commerce.” Id. (emphasis added).
Firearm is defined to mean “(A) any weapon (including a starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any
firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.”
18 U.S.C. § 922(3).
A destructive device is defined to mean,
(A) any explosive, incendiary, or poison gas-(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is
generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or
which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and
which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any
destructive device described in subparagraph (A) or (B) and from which a destructive device may be
readily assembled.

18 U.S.C. § 922(4).
3

Docket entry references to historical events in the original criminal proceedings are to the Eastern District of
Texas proceeding, Cause No. 1:05-CR-127.

2/7

district court’s denial of his motion to suppress evidence. Id.
White filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 in October 2008 that the district court dismissed in January 2009. (D.E. 85). The
district court’s order does not appear in the docket, but the Fifth Circuit’s denial of his
request for a Certificate of Appealability in February 2011 reflects that the district court
denied the motion as untimely. (D.E. 91). White’s motion to vacate complained of
government misconduct and ineffective assistance of counsel regarding issues
surrounding the search of his home and the denial of his motion to suppress. (D.E. 85).
III.

PETITIONER’S CLAIMS
White seeks to vacate his conviction and expunge all record of these proceedings

on the ground that he is actually innocent. White claims that “a convicted felon is allowed
by law, to purchase and own a shot gun and shot gun shells.” (D.E. 1, p. 6). Therefore, he
claims that the indictment charging him with felon in possession is “erroneous and
unconstitutional.” (D.E. 1, p. 6).
IV.

PETITION FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the appropriate vehicle in

which “a sentenced prisoner attacks the manner in which a sentence is carried out or the
prison authorities’ determination of its duration.” See Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000) (internal citations omitted); Moorehead v. Chandler, 540 Fed. App’x.
458, 458 (5th Cir. Oct. 9, 2013) (per curiam) (designated unpublished); United States v.
Gabor, 905 F.2d 76, 77-78 n.2 (5th Cir. 1990); United States v. Garcia-Gutierrez, 835

3/7

F.2d 585, 586 (5th Cir. 1998) (claims for sentence credit to federal sentences are properly
brought pursuant to § 2241).
In contrast, a § 2255 motion provides the primary means of collateral attack on a
federal sentence. Pack, 218 F.3d at 451. Relief under § 2255 is warranted for errors
cognizable on collateral review that occurred at or prior to sentencing. Id. A § 2255
motion must be filed in the sentencing court. Id.; Eckles v. Chandler, 574 Fed. App’x.
446, 446 (5th Cir. July 1, 2014) (per curiam) (designated unpublished). A § 2241 petition
that seeks to challenge the validity of a federal sentence must either be dismissed or
construed as a § 2255 motion. Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209,
212 (5th Cir. 2000) (same).
Petitioner’s habeas corpus claims are based on his alleged innocence of the felon
in possession of a firearm charge on the grounds that the firearm is a shotgun and is
excluded from the prohibition in § 922(g)(1). White asks this Court to vacate his
conviction. Because White’s complaints relate to the merits of his conviction, not to the
interpretation or carrying out of his sentence by the Bureau of Prisons, White must
challenge his sentence in the sentencing court through a § 2255 action, unless he qualifies
for relief pursuant to § 2255’s savings clause. 28 U.S.C. § 2255.
Petitioner may bring his claim pursuant to § 2241 by showing that § 2255 is
inadequate or ineffective to test the legality of his conviction. Reyes v. Requena, 243 F.3d
893, 901 (5th Cir. 2001); Tolliver v. Dobre, 211 F.3d 876, 877–78 (5th Cir. 2000) (per
curiam). The savings clause provides as follows:

4/7

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
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).
The savings clause of § 2255(e) applies to a claim that is based upon 1) a
retroactively applicable Supreme Court decision that establishes that 2) Petitioner may
have been convicted of a nonexistent offense and 3) that the complaint was foreclosed by
circuit law at the time the claim should have been raised at trial, on appeal or by his first
§ 2255 motion. Under that set of circumstances, it can be fairly said that the remedy by a
successive § 2255 motion is inadequate. Reyes-Requena, 243 F.3d at 904.
White claims that he cannot obtain relief by filing a § 2255 motion because such a
motion would be barred by limitations and is second or successive. (D.E. 1, p. 5). “[A]
prior unsuccessful § 2255 motion, or the inability to meet AEDPA’s ‘second or
successive’ requirement, does not make § 2255 inadequate or ineffective.” Dobre, 211
F.3d at 878. White’s claim that he is actually innocent of the superseding indictment
might qualify for treatment pursuant to the savings clause if his claim was based upon a
retroactively applicable Supreme Court decision that establishes that the petitioner was
convicted of a nonexistent offense that was foreclosed by previous circuit precedent, but
White makes no such claim. See Reyes-Requena, 243 F.3d at 904.

5/7

White has not established that he can meet the requirements of the savings clause
to file a § 2241 petition. Accordingly, it is recommended that Petitioner’s habeas action
be dismissed because this Court does not have jurisdiction to consider his § 2255 claim
and also because he has not shown that § 2255 is inadequate or ineffective to address his
claims, allowing him to bring the claim under § 2241.
V.

RECOMMENDATION
For the reasons stated, it is respectfully recommended that Petitioner’s 28 U.S.C. §

2241 cause of action be DISMISSED. It is further recommended that Petitioner’s cause
of action not be recharacterized as motion to vacate or set aside his sentence brought
pursuant to 28 U.S.C. § 2255.
ORDERED this 3rd day of February, 2015.

___________________________________
Jason B. Libby
United States Magistrate Judge

6/7

NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy
of the Memorandum and Recommendation, a party may file with the Clerk and serve on
the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

7/7