Wyatt v. Bragg

Filing 2

MEMORANDUM OPINION AND ORDER. Signed by Judge Kathleen Cardone. (dl1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JOHN M . WYATT,
Reg. No. 04900-051,
Petitioner,

§
§
§
§
§
§
§

v.
M . TRAVIS BRAGG,
Respondent.

EP-11-CV-187-KC

M EM ORANDUM OPINION AND ORDER
Before the Court is the fourth pro se petition for a writ of habeas corpus filed by Petitioner
John M. Wyatt in the Western District of Texas.1 In the instant petition for a writ of “habeas corpus
ad subjiciendum,”2 Wyatt, a prisoner currently incarcerated at the Federal Correctional InstitutionLa Tuna, in Anthony, Texas, challenges his conviction in the United States District Court for the
Southern District of Illinois for possession with the intent to distribute more than 100 kilograms of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).3 Wyatt asserts that he was not
charged in the indictment with an offense violating an “Act of Congress;” he was charged with an
offense violating the United States Code.4 He argues “[t]herefore, the U.S. District Court did not
have ‘subject matter jurisdiction’ to hear the allegation.”5 Moreover, he claims that an “Act of

1

See Wyatt v. Bragg, EP-10-CV-237-DB (W.D. Tex. Jun. 24, 2010); Wyatt v. Bragg, EP09-CV-204-FM (W.D. Tex. Jun. 4, 2009); Wyatt v. Bragg, EP-09-CV-71-DB (Mar. 4, 2009). In
each of these cases, the Court transferred Wyatt’s petitions to the Court of Appeals for the Seventh
Circuit for further consideration.
2

See Black’s Law Dictionary 778 (9th ed. 2009) (“A writ directed to someone detaining
another person and commanding that the detainee be brought to court.”).
3

United States v. Wyatt, 3:02-CR-30060-DRH (S.D. Ill. Aug. 31, 2004), aff’d, No. 043314 (7th Cir. May 16, 2005).
4

Pet. 3.

5

Id. at 4 (emphasis in original).

Congress” does not authorize the Department of Justice or the Bureau of Prisons to imprison or
detain him.6 Accordingly, he maintains Respondent Warden M. Travis Bragg has “illegally,
unlawfully, and falsely” imprisoned him.7 While his allegations are factually frivolous as they are
“‘fanciful,’ ‘fantastic,’ and ‘delusional,’”8 the Court will, nevertheless, further examine his petition
and determine whether it may adjudicate his claims.
Wyatt does not specify the legal authority for his petition. “[T]he All Writs Act does not
confer an independent basis for subject matter jurisdiction.” 9 “[T]he All Writs Act is a residual
source of authority to issue writs that are not otherwise covered by statute. Where a statute
specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that
is controlling.”10 A sentenced prisoner may bring a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 to challenge “the manner in which a sentence is carried out or the prison
authorities’ determination of its duration.”11 A § 2241 petitioner may make this attack only in the
district court with jurisdiction over his custodian.12 In the instant case, however, Wyatt challenges
his conviction. The primary means of collaterally attacking a federal conviction is a motion to

6

Id. at 8.

7

Id. at 5.

8

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke v. Williams, 490 U.S.
319, 325, 327, 328 (1989)).
9

Renteria-Gonzalez v. INS, 322 F.3d 804, 811 (5th Cir. 2002); see also Texas v. Real
Parties in Interest, 259 F.3d 387, 392 (5th Cir. 2001).
10

Carlisle v. United States, 517 U.S. 416, 429 (1996) (citing Pennsylvania Bureau of
Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985)).
11

Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted).

12

United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
-2-

vacate, set aside, or correct a sentence, pursuant to 28 U.S.C. § 2255.13 A § 2255 movant may only
bring his motion in the district of conviction and sentence.14
There is a “savings clause” in § 2255 which acts as a limited exception to the general rules
outlined above.15 A federal court may consider a petition filed under § 2241 which challenges a
federally imposed sentence when the petitioner establishes that the remedy under § 2255 is
“inadequate or ineffective.”16 In order to meet the stringent “inadequate or ineffective” requirement,
the claim must be “based on a retroactively applicable Supreme Court decision which establishes
that the petitioner may have been convicted of a nonexistent offense” and the claim must have been
“foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial,
appeal, or first § 2255 motion.”17 Thus, three issues are relevant analytically. First, there must be a
Supreme Court decision with retroactive effect. Second, the Supreme Court decision must establish
that the § 2241 petitioner may have been convicted of a nonexistent offense. Third, the petitioner’s
claim must have been precluded by established circuit law at the time of petitioner’s trial, appeal or
first § 2255 motion. A petitioner must prove all three elements to successfully invoke the savings
clause.18

13

28 U.S.C.A. § 2255 (West 2011).

14

Pack, 218 F.3d at 452.

15

See 28 U.S.C.A. § 2255(e) (“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.”) (emphasis added).
16

Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

17

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

18

Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005).
-3-

Here, Wyatt claims he was convicted of a nonexistent offense. He does not, however,
identify a Supreme Court decision with retroactive effect which supports his claim. Further, he does
not assert established circuit law at the time he entered his guilty plea precluded his claim. Thus,
Wyatt does not meet the criteria required to support a claim under the savings clause of § 2255.
Accordingly, the Court concludes that it should construe Wyatt’s petition as a § 2255 motion, and
that it lacks jurisdiction to consider his claim.19
The Court notes Wyatt previously filed a § 2255 motion which the sentencing court
apparently denied. Thus, the Court is not required to advise Wyatt “that this recharacterization
means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or
successive’ motions, and provide the litigant with an opportunity to withdraw the motion or to
amend it so that it contains all the § 2255 claims he believes he has.” 20 The Court further notes the
Antiterrorism and Effective Death Penalty Act of 199621 imposes three restrictions on a movant’s
second or successive § 2255 motion: (1) any previously adjudicated claim must be dismissed; (2)
any new claim must be dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual innocence; and (3) a court of
appeals must determine whether the movant has presented a claim relying on a new rule or new
facts.22 These restrictions eliminate “the need for the district courts to repeatedly consider challenges
to the same conviction unless an appellate panel first f[in]d[s] that those challenges ha[ve] some

19

United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Hooker v. Sivley, 187 F.3d
680, 682 (5th Cir. 1999).
20

Castro v. United States, 540 U.S. 375, 383 (2003).

21

Pub. L. 104-132, 110 Stat. 1214.

22

Cf. Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005) (explaining 28 U.S.C. §
2244(b)(1)-(3) in the context of a 28 U.S.C. § 2254 petition).
-4-

merit.”23 Thus, before Wyatt may proceed, “the appropriate court of appeals [must] authoriz[e] the
[sentencing] district court to consider the [second or successive] application.” 24
The Court also notes that it transferred three of Wyatt’s previous petitions for writs of habeas
corpus to the United States Court of Appeals for the Seventh Circuit for further proceedings. In EP09-CV-71-DB, Wyatt argued the Court should reduce his sentence based on two Supreme Court
decisions, Begay v. United States25 and Chambers v. United States,26 because he did not meet the
criteria for sentencing as an armed career felon. In EP-09-CV-204-FM, Wyatt asserted the Court
should vacate his conviction, based on the Supreme Court’s decision in Arizona v. Gant,27 because a
narcotics officer improperly searched his rented recreational vehicle. In EP-10-CV-237-DB, Wyatt
maintained the trial court erred in determining that he was a “career offender,” pursuant to
Sentencing Guidelines Manual § 4B1.1(a),28 because his prior escape conviction under 18 U.S.C. §

23

Key, 205 F.3d at 774 (citing In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)).

24

28 U.S.C.A. § 2244(b)(3)(A) (West 2011).

25

See Begay v. United States, 553 U.S. 137, 148 (2008) (holding that New Mexico felony
offense of driving under the influence of alcohol (DUI) is not a “violent felony” within meaning of
section of the Armed Career Criminal Act imposing special mandatory fifteen-year prison term upon
felons who unlawfully possess a firearm and who have three or more convictions for violent
felonies).
26

See Chambers v. United States, 555 U.S. 122, --, 129 S.Ct. 687, 693 (2009) (holding
that Illinois’s failure-to-report offense did not have as an element the use, attempted use, or
threatened use of physical force, and was a relatively passive offense that did not involve conduct
presenting a serious potential risk of physical injury to another, so as not to qualify as “violent
felony” under the Armed Career Criminal Act).
27

See Arizona v. Gant, -- U.S. --, 129 S. Ct. 1710, 1723-24 (2009) (holding the searchincident-to-arrest exception to the Fourth Amendment’s warrant requirement did not permit the
search of the defendant’s vehicle while he was handcuffed in a nearby patrol car).
28

U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.1(a) (2003) (“A defendant is a career
offender if (1) the defendant was at least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant has at least two prior felony
-5-

751(a) for walking away from a halfway house was not a “crime of violence.” Despite these
transfers, Wyatt continues to file petitions challenging his conviction and sentence in the Western
District of Texas.
Accordingly, based on the foregoing considerations, the Court enters the following orders:
The Court CONSTRUES Petitioner John M. Wyatt’s pro se petition for habeas

1.

corpus challenging his conviction in the United States District Court for the Southern
District of Illinois as a successive motion to vacate, set aside, or correct a sentence,
pursuant to 28 U.S.C. § 2255.
2.

The Court DISM ISSES the instant cause WITHOUT PREJUDICE for lack of
jurisdiction.
The Court WARNS Petitioner John M. Wyatt’s that pro se litigants have “no

3.

license to harass others, clog the judicial machinery with meritless litigation, and
abuse already overloaded court dockets.” 29 The Court possesses the inherent power
“to protect the efficient and orderly administration of justice and . . . to command
respect for the court’s orders, judgments, procedures, and authority.” 30 Included in
this inherent authority is “the power to levy sanctions in response to abusive
litigation practices.” 31 Therefore, sanctions may be appropriate when a pro se
litigant has a history of submitting multiple frivolous claims.32

convictions of either a crime of violence or a controlled substance offense.”).
29

Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

30

In re Stone, 986 F.2d 898, 902 (5th Cir. 1993).

31

Id.

32

F ED . R. C IV . P. 11; Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993). See
also Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir. 1993) (explaining courts may impose
-6-

4.

The Court additionally DENIES AS MOOT any pending motion.

SIGNED on this 12 th day of M ay, 2011.

______________________________________
KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

regulatory injunctions designed to prohibit the filing of duplicative and frivolous actions); Tripati v.
Beaman, 878 F.2d 351, 352-53 (10th Cir. 1989) (explaining litigants have no constitutional right of
access to the courts to prosecute actions that are frivolous or malicious and district courts have the
power to enjoin litigants who abuse the court system).
-7-