Petition for Writ of Certiorari — Paul R. Butts, Petitioner v. Eric D. Wilson, Warden

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PAUL R. BUTTS,

Petitioner,

VS :

RODNEY W. CHANDLER, Warden,

FMC-Fort Worth,

Respondent.

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No. 4:17-CV-1033-Y

OPINION AND ORDER

Before the Court is a petition for writ of habeas

corpus

pursuant to 28 U.S.C. § 2241 filed by Petitioner, Paul R. Butts, a

federal prisoner confined at FMC-Fort Worth,

Chandler,

warden

of

FMC-Fort

Worth,

against Rodney W.

Respondent.

After

having

considered the petition and relief sought by Petitioner, the Court

has concluded that the petition should be dismissed for lack of

j urisdiction.

I.

Factual and Procedural Background

In 2008, in the United States District of Arizona, which lies

in the Ninth Circuit,

Petitioner was sentenced to a term of 220

months in the Bureau of Prisons for his conviction on one count of

distribution of child pornography,

in violation of 18 U.S.C. §§

2252A(a)(3) and (b)(1) and 2256, and a term of 120 months for his

convictions on fifteen counts of possession of child pornography,

in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) and 2256.

(Resp't's App. 1-2, doc. 8.) By way of this petition, Petitioner

appears

to

challenge his

conviction

for distribution of child

pornography by alleging that he is actually innocent of the offense

because

the government did not claim[,] state, prove or even

suggest that any files themselves had crossed state lines

to affect the "in interstate or foreign commerce" nexus.

The government only claimed that the prefabricated

computer parts (hard drives) were manufactured outside of

Arizona. The government was to "prove that the images

actually crossed state lines."

(Pet.

6,

doc.

1.)

Petitioner

relies

primarily upon

the Ninth

Circuit cases of United States v. Wright, 625 F.3d 583

(9th Cir.

2010), and United States v. Flyer, 633 F.3d 911

(9th Cir. 2011),

but he also cites cases from other circuits, including the Fifth

Circuit.

II. Discussion

A § 2241 petition attacking a federal conviction may only be

considered if the petitioner establishes that the remedy under §

2255(e) is "inadequate or ineffective to test the validity of his

detention." 28 U.S.C. § 2255(e)

(the so-called "savings clause");

Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).

To meet this

burden, a petitioner must show that (1) the petition raises a claim

that is based on a retroactively applicable United States Supreme

Court decision,

(2) the claim was foreclosed by circuit law at the

time when it should have been raised in the petitioner's trial,

appeal,

or

first

§

2255

motion,

and

(3)

that

retroactively

applicable decision establishes that the petitioner may have been

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convicted of a nonexistent offense. Garland v. Roy, 615 F.3d 391,

394 (5th Cir. 2010); Reyes-Requena v. United States, 243 F.3d 893,

904 (5th Cir. 2001) .

Petitioner fails to meet any of these requirements. The cases

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relied upon by Petitioner are not Supreme Court decisions made

retroactive to cases on collateral review. And, even though Wright

and Flyer were not decided until 2010 and 2011,

Petitioner

fails

to

identify

any

authority

respectively,

that

would

have

foreclosed him from making the same argument at trial, on appeal,

or in his initial § 2255 motion under then existing circuit law. i

See Gricco v. Keffer, 335 Fed. App'x 423, 2009 WL 1806896, at *1

(5th Cir.

June

24,

2009).

Furthermore,

Petitioner's

claim was

raised in his third § 2255 motion transferred by the convicting

court

to

the Ninth Circuit,

which construed the motion

as

an

application to file a second or successive § 2255 motion and denied

the

application.

(Resp't's

App.

10-13,

doc.

8.)

Petitioners's

inability to meet the requirements for filing a successive § 2255

motion does not make the § 2255 remedy inadequate. See Toliver, 211

F.3d at 878.

Because Petitioner has not met the criteria required to invoke

the savings clause of § 2255, or demonstrated that the remedy under

§ 2255 is inadequate, as to the claim presented in this habeas-

‘in Wright, which was decided in 2010, the Ninth Circuit specifically noted

that the matter was one of "apparent first impression." Wright, 625 F. 3d at 590.

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corpus proceeding, the Court is without jurisdiction to consider

the petition.

Christopher v. Miles,

342 F. 3d 378,

385

(5th Cir.

2003).

For the reasons discussed, the Court DISMISSES the petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for lack

of jurisdiction.

Further, Federal Rule of Appellate Procedure 22 provides that

an appeal may not proceed unless a certificate of appealability is

issued under 28 U.S.C'. § 2253. The certificate of appealability may

issue "only if the applicant has made a substantial showing of the

denial of a constitutional right." Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). "Under this standard, when a district court denies

habeas relief by rejecting constitutional claims on their merits,

'the petitioner must demonstrate that reasonable jurists would find

the

district

court's

assessment

debatable or wrong. t rr McGowen v.

Cir. 2012)

of

the

Thaler,

constitutional

675 F. 3d 482,

claims

498

(5th

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

When the district court denies the petition on procedural grounds

without reaching the merits, the petitioner must show "that jurists

of reason would find it debatable whether the petition states a

valid claim of the denial

of a constitutional

right

and that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling." Id.

(quoting Slack,

529 U.S. at 484). This inquiry involves two components, but a court

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may deny a certificate of appealability by resolving the procedural

question only. Petitioner has not made a showing that reasonable

jurists would question this Court's procedural ruling. Petitioner

has neither alleged nor demonstrated that he is entitled to proceed

under 28 U.S.C. § 2241. Therefore, a certificate of appealability

should not issue.

SIGNED September 19, 2018.

Uui/R. MJjMu

CERIO R. MEANS

UNITED STATES DISTRICT JUDGE

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Exhibit B

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-11272

Summary Calendar

FILED

June 3, 2019

Lyle W. Cayce

Clerk

PAUL R. BUTTS,

Petitioner - Appellant

v.

ERIC D. WILSON, Warden, FMC-Fort Worth,

Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDCNo. 4:17-CV-1033

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges,

PER CURIAM:*

. Paul R. Butts, federal prisoner # 84674-008 and proceeding pro se,

challenges the dismissal of his 28 U.S.C. § 2241 petition, in which he contests

his convictions in 2008 for distributing and possessing child pornography, in

violation of 18 U.S.C. §§ 2252A and 2256, and his resulting sentence of, inter

alia, 220-months’ imprisonment. He asserts on appeal: he is actually innocent

of the charged offenses; the district court in 2008 lacked jurisdiction because

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4.

No. 18-11272

the Government failed to allege or prove that any of the images he possessed

or distributed had traveled in interstate commerce; and the immediate district

court’s refusal to consider the claim results in a complete miscarriage of justice.

The dismissal of Butts’ § 2241 petition is reviewed de novo. Padilla u.

United States, 416 F.3d 424, 425 (5th Cir. 2005). In that regard, a prisoner

may use § 2241 to challenge his conviction only if the remedy under 28 U.S.C.

§ 2255 is inadequate or ineffective to contest the legality of his detention.

§ 2255(e).

A § 2241 petition is not a substitute for a § 2255 motion, and, to meet the

savings clause of § 2255(e), Butts must establish the inadequacy or

ineffectiveness of a § 2255 motion. See § 2255(e); Jeffers v. Chandler, 253 F.3d

827, 830 (5th Cir. 2001); Reyes-Requena v. United States, 243 F.3d 893, 904

(5th Cir. 2001). To satisfy that clause, he must show his petition states a claim

that: “is based on a retroactively applicable Supreme Court decision which

establishes . . . [he] may have been convicted of a nonexistent offense”; and

“was foreclosed by circuit law at the time when the claim should have been

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raised in [his] trial, appeal, or first § 2255 motion”. Reyes-Requena, 243 F.3d

at 904.

Butts has waived—by fading to brief—any contention challenging the

district court’s conclusion that his claim did not qualify for savings-clause relief

because it did not rely on any retroactively applicable Supreme Court decision.

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v.

Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Along that

line, he has not identified a retroactively applicable Supreme Court decision

concerning whether he was convicted of conduct that is not a crime.

Padilla, 416 F.3d at 425—26.

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See

No. 18-11272

Although Butts urges that the court’s refusal to consider his claim

results in a miscarriage of justice, the true nature of his complaint is that he

cannot meet the requirements for filing a successive § 2255 motion, but he

should nevertheless be allowed to proceed because his claim is based on new

circuit-court decisions not available at the time of his conviction. As the court

concluded correctly, however, Butts’ inability to meet the requirements for

filing a successive § 2255 motion does not entitle him to proceed under § 2241.

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

AFFIRMED.

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Exhibit C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 17 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

PAUL RICHARD BUTTS,

No.

17-71604

Applicant,

v.

ORDER

UNITED STATES OF AMERICA,

Respondent.

Before:

CANBY, TROTT, and GRABER, Circuit Judges.

We treat the writ of habeas corpus, transferred by the district court on June

1, 2017, as supplemented by the applicant’s subsequent filings, as an application to

file a second or successive section 2255 motion in the district court.

The application is denied. The applicant has not made a prima facie

showing under 28 U.S.C. § 2255(h) of:

(1) newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found the

movant guilty of the offense; or

(2) a new mle of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.

To the extent the applicant may seek to file a 28 U.S.C. § 2241 habeas

corpus petition under section 2255(e), we cannot entertain this petition and he must

file the petition directly with the district court.

Any pending motions are denied as moot.

No further filings will be entertained in this case.

DENIED.

o

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17-71604

Case: 18-11272

Document: 00515042937

Page: 1

Date Filed: 07/22/2019

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11272

PAUL R. BUTTS,

Petitioner - Appellant

v.

ERIC D. WILSON, Warden, FMC-Fort Worth,

Respondent - Appellee

Appeal from the United States District Court

for the Northern District: of Texas

ON PETITION FOR REHEARING EN BANC

(Opinion 06/03/19,5 Cir., _1

F.3d

)

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM;

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Treating the Petition for Rehearing En Banc as a Petition for Panel

Rehearing, the Petition for Panel Rehearing is DENIED. No member of

the panel nor judge in regular active service of the court having

requested that the court be polled on Rehearing En Banc (FED. R. APP.

P. and 5th ClR. R. 35), the Petition for Rehearing En Banc is DENIED.

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Treating the Petition for Rehearing En Banc as a Petition for Panel

Rehearing, the Petition for Panel Rehearing is DENIED. The court

Case: 18-11272

Document: 00515042937

Page: 2

Date Filed: 07/22/2019

having been polled at the request of one of the members of the court and

a majority of the judges who are in regular active service and not

disqualified not having voted in favor (FED. R. APP. P. and 5™ ClR. R. 35),

the Petition for Rehearing En Banc is DENIED.

THE COURT:

dm

UNITED STATES CIRCUIT JUDGE

Case: 18-11272

Document: 00515042953

Page: 1

Date Filed: 07/22/2019

United States Court ofAppeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

LYLEW. CAYCE

CLERK

July 22, 2019

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 18-11272

Paul Butts v. Eric Wilson

USDC No. 4:17-CV-1033

Enclosed is an order entered in this case.

See FRAP and Local Rules 41 for stay of the mandate.

Sincerely,

LYLE W. CAYCE, Clerk

By: _______________________________

Melissa B. Courseault, Deputy Clerk

504-310-7701

Mr. Paul R. Butts

Mr. Brian Walters Stoltz

Additional material

from this filing is

available in the

Clerk's Office.