Opinion
CIVIL ACTION NO. 4:03-CV-1145-Y
September 29, 2003
ORDER OF SUMMARY DISMISSAL AND ORDER IMPOSING SANCTIONS
Came on to be considered the above-styled and numbered cause wherein petitioner Don Benny Anderson has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Anderson is presently housed at the Bureau of Prisons' FMC — Fort Worth facility in Fort Worth, Texas. On preliminary consideration of the petition by this Court pursuant to 28 U.S.C. § 2243, it appears that petitioner Anderson is not entitled to relief. From the face of the petition, it is apparent that Anderson has filed challenges to alleged errors that occurred during or before sentencing, and as such, this Court is without jurisdiction to hear the action, such that the petition for writ of habeas corpus under 28 U.S.C. § 2241 must be dismissed with prejudice. As this is Anderson's sixth petition filed in this Court that has been dismissed for lack of jurisdiction or denied, the Court also finds that a sanction must be imposed upon Anderson.
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.A. § 2243 (West 1994) (emphasis added).
Dismissal of Petition
Anderson challenges the 1983 judgment of conviction and sentence of imprisonment imposed upon him in the United States District Court for the Southern District of Illinois in cause number 83-CR-50031 for violation of 18 U.S.C. § 1951 and 1952. (Pet. at 1.)
By this action, Anderson claims that the Court did not have jurisdiction over the charges against him because there was a lack of pleading or proof of an injury to interstate commerce. (Pet. at 3.) Anderson's claims involve alleged errors that occurred before or at sentencing. A motion filed under 28 U.S.C. § 2255, not § 2241, is the proper method of challenging errors that occurred during or before sentencing. Because Anderson challenges errors that allegedly occurred before and during his conviction and sentencing, they must be asserted in a § 2255 motion, and the only court with jurisdiction to determine such a motion is the court that sentenced him, i.e., the United States District Court for the Southern District of Illinois. Thus, petitioner Anderson may not assert the claims raised in the instant case in a petition under 28 U.S.C. § 2241, and as such, the instant petition under § 2241 should be summarily dismissed with prejudice.
See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); see also Ojo v Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997, citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) ("Attacks on the underlying conviction must be brought under 28 TJ.S.C. § 2255, not 28 U.S.C. § 2241(c)"); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) ("appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing").
See Ojo, 106 F.3d at 682, citing Solsona v. Warden, F.C.I., 821 P.2d 1129, 1132 (5th Cir. 1987); see also 28 U.S.C.A. § 2255 (West Supp. 2002). Section 2255 provides in relevant part as follows:
A prisoner in [federal] custody . . . claiming that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(Emphasis added.)
As Anderson is incarcerated in this division, this Court had to determine whether he may proceed under 28 U.S.C. § 2241. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999), citing United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).
Although a § 2241 petition attacking matters within the province of § 2255 could be construed as a § 2255 motion, "a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that." Ojo, 106 F.3d at 683, citing Solsona, 821 F.2d at 1131-32.
Section 2255 provides that a prisoner may file a writ of habeas corpus if a remedy by § 2255 motion is "inadequate or ineffective to test the legality of his detention." Anderson does not explicitly invoke the "savings clause," and a review of his claims shows that he could not. The failure to succeed with a prior motion under 28 U.S.C. § 2255, does not make that remedy ineffective or inadequate. Anderson sought relief under § 2255 and the motion was denied.
28 U.S.C.A. § 2255 (West Supp. 2003).
See Tolliver, 211 F.3d at 878.
To the extent Anderson might now contend that a motion under § 2255 is "inadequate or ineffective" solely because he can not obtain permission to file a successive § 2255 motion from the Court of Appeals for the Seventh Circuit, this Court rejects such argument. See Id.
In order to successfully invoke the savings clause, Anderson must meet the requirements of the actual-innocence test set out in Reyes-Resquena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). To do so, Anderson must show that his claims are
See Wesson v. U.S. Penitentiary Beaumont, Tx., 305 F.2d 343, 347 (5th Cir. 2002).
based on a retroactively applicable Supreme Court decision which establishes that the petitioner 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 petitioner's trial, appeal, or first § 2255 motion.
Reyes-Requena, 243 F.3d at 904; see also Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001) (clarifying that the first factor of this test requires that "a retroactively applicable Supreme Court decision establish that the petitioner is `actually innocent.'").
The burden of presenting evidence to make the showing of the inadequacy of § 2255 "`rests squarely on the petitioner.' Anderson has not made a showing as to either prong, and the Court determines that the claims he has presented fail to invoke either prong. The petition must be dismissed. Sanctions
Wesson, 305 F.3d at 347.
This action is Anderson's sixth petition for writ of habeas corpus filed in this district in a little over a year. The instant petition was prepared by Anderson before his most recent petition (case number 4:03-CV-793), which included challenges to the same conviction from the Southern District of Illinois, was dismissed. In none of these filings has Anderson properly invoked 28 U.S.C. § 2241 to challenge the execution of his sentence. Rather, Anderson continues to paper this Court seeking relief to which he has repeatedly been told he is not entitled. Furthermore, the court producing the underlying conviction that Anderson improperly challenges here, the United States District Court for the Southern District of Illinois, previously imposed a monetary sanction upon Anderson for his record of repeatedly filing frivolous motions in that court challenging the court's jurisdiction. Anderson has not satisfied that court's monetary sanction, and he has now shown a disregard for that court's admonishment of him for abuse of the legal process. This Court determines that Anderson has shown that he is abusing the privilege to pursue the writ of habeas corpus and, as a sanction, the Court determines that Anderson may not file any petition for writ of habeas corpus or civil action or other paper in this Court without seeking permission of a judge of this Court by the filing of a separate motion for leave to file.
The prior cases are: Anderson v. Fleming, 4:03-CV-793-Y (dismissing the bulk of the claims with prejudice as improperly asserted in a petition under 28 U.S.C. § 2241); Anderson v. Fleming, No. 4:02-CV-521-A (construing petition under 28 U.S.C. § 2241 as a motion under 28 U.S.C. § 2255 and dismissing); Anderson v. Fleming, No. 4:02-CV-654-A,(transferring petition construed as seeking relief under 28 U.S.C. § 2254 to United States District Court for Middle District of Florida) and No. 8:02-CV-1463 (M.D. Fl. Sep. 30. 2002) (denying petition); Anderson v. Fleming, 4:03-CV-219-Y (dismissing with prejudice for lack of jurisdiction); Anderson v. Fleming, 4:03-CV-O97-Y (dismissing challenge to failure to release on parole for lack of exhaustion).
A copy of the June 3, 1999, Order imposing sanctions in United States of America v. Anderson, 82-CR-50031, is attached hereto as exhibit 1.
It is therefore ORDERED that petitioner Don Benny Anderson's petition for a writ of habeas corpus under 28 U.S.C. § 2241 be, and is hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that Don Benny Anderson, federal register number 06260-026 be, and is hereby, BARRED from filing any pro-se civil action or habeas-corpus petition in the United States District Court for the Northern District of Texas without advance written permission of a judge of this Court. In order to obtain such permission, Anderson must accompany any paper he proposes to file with a separate motion requesting the Court's permission to file. The clerk of this Court is DIRECTED to return to Anderson, unfiled, any attempted submission inconsistent with this bar.