Opinion
Civil No. 05-318 ADM/SRN.
March 31, 2005
Jose Rafael Tineo, pro se.
Paul A. Murphy, Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to the Objections of Petitioner Jose Tineo ("Petitioner") [Docket No. 4] to the February 16, 2005 Report and Recommendation ("RR") of Magistrate Judge Susan Richard Nelson [Docket No. 2] to dismiss Petitioner's Petition for Writ of Habeas Corpus ("Petition") [Docket No. 1]. In his Petition, Petitioner claims his sentence was based, in part, on factual determinations made by the trial court judge, rather than a jury, and that his sentence should therefore be set aside pursuant to the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 124 S. Ct. 2531 (2004), andUnited States v. Booker, 125 S. Ct. 738 (2005). Petitioner brings his application for habeas corpus relief under 28 U.S.C. § 2241.
On February 20, 2004, following the issuance of the RR, Petitioner sent this Court a letter [Docket No. 3] asking "the Court to Construe this message into a motion to Dismiss without Prejudice at this time." Because Petitioner subsequently filed Objections to Judge Nelson's RR, the merits of Petitioner's arguments will be addressed. Furthermore, although Petitioner's Objections were filed on March 16, 2005, several days after the deadline set by D. Minn. LR 72.1(c)(2), the Court recognizes Petitioner is proceeding pro se and will consider his Objections.
The RR dismisses Petitioner's Petition for Writ of Habeas Corpus for want of jurisdiction. The factual and procedural background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections. For the reasons set forth below, the Objections are denied and the RR is adopted.
II. DISCUSSION
The district court must undertake an independent, de novo, review of those portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).
Petitioner objects to the RR on two related grounds. Petitioner first objects to the finding that this Court does not have jurisdiction to hear his Petition for Writ of Habeas Corpus under § 2241. Second, Petitioner objects to the finding thatApprendi, Blakely, and Booker do not apply retroactively to second or successive habeas petitions.
A. Jurisdiction Over § 2241 Petitions
Petitioner objects to the RR's finding that no jurisdiction exists under § 2241 for this Court to hear Petitioner's Petition. The RR correctly states that a prisoner can maintain a collateral challenge to his conviction or sentence only by filing a 28 U.S.C. § 2255 motion with the trial court. RR at 2-3; see also Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). It is well settled, under the exclusory rule, that a prisoner may not collaterally challenge a federal conviction or sentence with a § 2241 habeas petition. Hill, 349 F.2d at 1091. Furthermore, only the sentencing court has jurisdiction to hear a petitioner's post-conviction challenge to a prisoner's conviction or sentence, unless a Petitioner can affirmatively demonstrate that the remedy under § 2255 is "inadequate or ineffective to test the legality of . . . [his] detention." DiSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam) (quoting 28 U.S.C. § 2255).
In the instant case, Petitioner is collaterally attacking his 1997 federal criminal sentence imposed in the United States District Court for the Western District of Wisconsin. He contends his constitutional rights were violated during the sentencing process, and that his sentence should therefore be vacated. As a result, the RR correctly concluded "the present petition is clearly subject to, and barred by, the § 2255 exclusive remedy rule." RR at 3. In certain limited instances, a § 2241 petition barred by the exclusive remedy rule may be converted to a § 2255 motion and transferred back to the sentencing court. Petitioner, however, has previously filed a § 2255 motion in his sentencing court. He has also filed two prior § 2241 petitions in this District. Tineo v. Reese, Civil No. 00-2773 (ADM/SRN); Tineo v. LeBlanc, 03-2230 (ADM/SRN). Both of these petitions were denied and Petitioner's subsequent appeals in those two cases were rejected. Petitioner cannot file a second or successive § 2255 motion without pre-authorization from the Court of Appeals for the Circuit in which the trial court is located. See 28 U.S.C. §§ 2244(b)(3) and 2255 (final paragraph). Since the Seventh Circuit Court of Appeals has not granted Petitioner a pre-authorization order, it would be inappropriate to convert Petitioner's § 2241 petition to a § 2255 motion at this time.Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). B. Applicability of Apprendi and its Progeny
Petitioner argues that he is entitled to seek habeas corpus relief under § 2241 because the remedy provided by § 2255 is "inadequate or ineffective to test the legality of his sentence." 28 U.S.C. § 2255. However, the Eighth Circuit has stated that § 2255 will not be viewed as inadequate or ineffective:
merely because § 2255 relief has already been denied . . . or because Petitioner has been denied permission to file a second or successive § 2255 motion . . . or because a second or successive § 2255 motion has been dismissed, . . . or because Petitioner has allowed the one year statute of limitations and/or grace period to expire.United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (citations omitted). See also Hill, 349 F.3d at 1091 ("in order to establish a remedy is `inadequate or ineffective' under § 2255, there must be more than a procedural barrier to bringing a § 2255 petition").
As the RR correctly noted, "[a] federal prisoner should be permitted to seek habeas corpus [under § 2241] only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion." RR at 6 (quoting In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998)). Petitioner previously challenged his sentence on direct appeal and through a prior § 2255 motion and cannot now claim § 2255 is "inadequate or ineffective" simply because those earlier challenges proved unsuccessful.
Both the RR and this Court recognize Apprendi, Blakely, and Booker were not decided when Petitioner filed his direct appeal and initial § 2255 motion; however, subsequent changes in the law do not generally render § 2255 an "inadequate or ineffective remedy." See RR at 6-7. The Eighth Circuit addressed this exact issue in holding federal prisoners cannot bring Apprendi claims in a § 2241 habeas corpus petition, even if those claims were not previously brought in a § 2255 petition:
[Appellants'] contend § 2255 is inadequate or ineffective because it is the impediment to the relief they seek. But this is not so. Their true impediment is Apprendi itself, not the remedy by § 2255 motion. To be more precise, appellants are hamstrung because the Supreme Court has not yet ruled (and indeed may never rule) that Apprendi applies retroactively to past criminal convictions. Neither . . . [of the appellants] may raise an Apprendi claim in a second § 2255 motion unless and until Apprendi applies retroactively.United States ex rel Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1062 (8th Cir. 2002), cert. denied, 537 U.S. 869 (2002) (emphasis added). Perez's holding applies with equal force to Petitioner's current claims based on Blakely and Booker. Since the Supreme Court has made neither holding retroactively applicable to cases on collateral review, Petitioner is precluded from raising these claims in a "second or successive" § 2255 motion. As a result, Petitioner cannot claim, even with respect to his Apprendi, Blakely, and Booker claims, that the remedy provided by § 2255 is "inadequate or ineffective."
Petitioner objects to the RR's finding that Apprendi and its progeny are not retroactively applicable to cases on collateral review. In particular, he claims the Supreme Court made Booker retroactively applicable to cases on collateral review through: (1) declaration; (2) application of the rule to a habeas case; and (3) multiple holdings which "necessarily dictate retroactivity of the new rule."
It is well established that a new rule of constitutional law cannot form the basis of a second or successive § 2255 motion unless the Supreme Court itself unequivocally makes the rule retroactive. Tyler v. Cain, 533 U.S. 656, 662-63 (2001). The Supreme Court has not expressly declared Booker's holding to be retroactive to cases on collateral review. In fact, Booker expressly stated only that its ruling was applicable "to all cases on direct review." 125 S. Ct. at 769. Furthermore, "Booker itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review." In re Anderson, 2005 U.S. App. LEXIS 1097, *9 (11th Cir. Jan. 21, 2005); see also Green v. United States, 2005 U.S. App. LEXIS 1652, *4-5 (2d Cir. Feb. 2, 2005).
Finally, although the Supreme Court has not explicitly considered whether Booker's holding applies retroactively to cases on collateral review, the Court's decision in Schiro v. Summerlin suggests multiple holdings do not "necessarily dictate retroactivity of the new rule." 124 S. Ct. 2519 (2004).Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002), which extended Apprendi to prohibit a judge, rather than a jury, from finding the existence of certain aggravating factors warranting imposition of the death penalty, was not retroactively applicable to cases on collateral review. Summerlin, 124 S. Ct. at 2524-26; see also Blakely, 124 S. Ct. at 2548-49 (O'Connor, J., dissenting) (recognizing the Court's holding inSummerlin "that Ring (and a fortiori Apprendi) does not apply retroactively on collateral review"); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) (finding Apprendi "is not of watershed magnitude" and . . . petitioner [is barred] from raising Apprendi claims on collateral review"). BecauseBooker and Blakely, like Ring, are based on an extension ofApprendi, Summerlin's reasoning applies to Booker andBlakely with equal force. See, e.g., In re Anderson, 2005 U.S. App. LEXIS at *11; Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004). Therefore, Petitioner cannot show the Supreme Court has made Apprendi and its progeny retroactive to cases already final on direct review.
For the aforementioned reasons, Petitioner's Objections are denied and the RR is adopted in its entirety.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Judge Nelson's RR [Docket No. 2] is ADOPTED in its entirety;
2. Petitioner's Objections [Docket No. 4] are DENIED;
3. Petitioner's Motion to Dismiss Without Prejudice [Docket No. 3] is DENIED; and
3. Petitioner's Petition for Writ of Habeas Corpus [Docket No. 1] is summarily DISMISSED.