Petition for Writ of Certiorari — Coley v. Lappin (No. 06-424)

06-424 SEP 19 2006

ante OFFICE OF THE CLERK

Supreme Court of the United States

TERRY COLEY,

Petitioner,

a

V.

HARLEY G. LAPPIN and

WARREN DAVID JUSTICE,

Respondents.

On Petition for Writ of Certiorari

to the U.S. Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Marcia G. Shein

Counsel of Record

2392 North Decatur Road

Decatur, Georgia 30033

(404) 633-3797

- Counsel for Petitioner

GibsonMoore Appellate Services, LLC

42] East Franklin Street ¢ Suite 230 ¢ Richmond, VA 23219

804-249-7770 # gibsonmoore@comcast.net

QUESTION PRESENTED

DOES THE FUGITIVE DISMISSAL

RULE VIOLATE A DEFENDANT'S

FIFTH, SIXTH, AND EIGHT

AMENDMENT RIGHTS WHEN THE

2241 IS BARRED AS INSUFFICIENT

TO OVERCOME THE INADEQUACY

OF A 2255 REQUIREMENT AND THE

DEFENDANT WAS A_ FUGITIVE

DURING THE TIME A 2255 COULD

HAVE BEEN TIMELY FILED?

il

LIST OF PARTIES

The parties in the court below are contained in

the caption. There is no party with an interest to

disclose pursuant to Rule 29 (6).

iii

TABLE OF CONTENTS

Page

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ES BAG FO Hcrtercstnicntataitnercicentoneeaeretin Vv

PETITION FOR WRIT OF CERTIORARI............cccceseseees 1

a UMNO iiss cicrsviesciiccoilabitnbuicinlaciniaiibaabbinciohaeabaisbalit 1

STATEMENT OF JURISDICTION onccssncossrsncessocarecssonesoeors 1

CONSTITUTIONAL PROVISIONS .........ccsssssssecsseseeseseee 1

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iv

3 DOES THE FUGITIVE DISMISSAL

RULE VIOLATE A

DEFENDANT'S FIFTH, SIXTH,

AND EIGHT AMENDMENT

RIGHTS WHEN THE 2241 IS

BARRED AS INSUFFICIENT TO

OVERCOME THE INADEQUACY

OF A 2255 REQUIREMENT AND

THE DEFENDANT WAS A

FUGITIVE DURING THE TIME A

2255 COULD HAVE BEEN

PEERS FRIST picsatinitinuislinadiaiiandaiion 10

A. Petitioner's Claim Of Error.........ccseeeeees 16 ,

B. Brief history surrounding the

application of Habeas Corpus

I 17

C. Deprivation of Constitutional

PANU sc iississthesncoxinnaicse sabe tectioiunivtniissbuiqens ites 22

D. Inadequacy of the 2255 Creates

Be FTI sce si ccicnserhsspcnssnctvinsbraiteinnete 22

i OE ese Accaines psn anand dednsehapsacaiipdananamacniasintiies 27

APPENDIX

Vv

TABLE OF AUTHORITIES

Page(s)

Cases

Ali v. Gibson,

Fe Oe OF 8 Ct CAE, TOFB) vecciccctvesineivenietevninvesiven 18

Charles v. Chandler,

180 F.3d 753 (6" Cir. 1999) (per curiam)............ 26

Cooper v. United States,

199 F3ge G5G 67 Cir, 1999) cvccsccovsceccescosesscescoennesies 26

Davis v. United States

417 U.S. 333,94 SCE. Z296 (1976) ...ccccsveseccecccensees 24

In Re: Davenport,

BAZ FS GOS C7O Ar. 1996). ccescncccscortevcerserrveves 24, 25

In Re: Dorsainvil,

Fh a gl Se | 4 REEL te 22

Kapral v. United States,

ee is BOI vensentvivnssccctaesvesicemnniticiobe 8

Kaufman v. United States,

394 US. 217, 89 S.Ct. 1068 (1969) .......c0cccsssoreorsors 19

Larson v. United States,

ee Fare Ce Rady. SOD sceiverinsevinvesovevianennsentene 17

vl

Mead v. Parker,

Pw BE Ti eh SES. / ¢ 1 a 21

McClesky v. Zant,

499 US. 467, 111 S. Ct. 1454 (1991) oe eeeeeeens 19

Michel v. Louisiana

DS Eh hg FO a LOO CIID ciccicanjesetvsiiabemsbocins 14

Miller v. Florida,

482 U.S. 423, 107 S.Ct. 2446 (1987) ........eeseeereeees 17

National Union Fire Insurance Company v.

City Savings,

FO CM SIG CTT, FIGS os sccwrssesenictvinstccpinivensien 21

Ortega-Rodriquez v. United States,

507 U.S. 234; 113 S.Ct. 1199 (1993) .......... 12, 13, 14

Pottinger v. City of Miami,

810 F Supp. 1551 (6D. Fl. 1992) ....ceccesseorsseeoveses 22

Reiter v. Sonotone Corporation,

442 US. 330, 99 S. Ct. Z3Z6. S79) cncccccecseessvcceseves 21

Sanders v. United States,

373 US. 1, 83 S. Ct. 1068 (1963) ......22:0-0---000 20, 21

Sunal v. Large,

Fae US. 176, 67 SCY. TRGB (BPG) oncceseconcsonerntsinenes 23

me Vil

Swan v. Press) °

430 U.S 822, 97 S.Ct. 1224 (1977) ..ccccceccosesesssevvees 19

Triestman v. United States,

124 F.3d 361 (2% Cir. 1997) ...ccccosceseess 15, 20, 22, 24

United States v. Addonizio, -

442 U.S. 178, 99 S.Ct. 2235 (1979) .........ceceeee 23, 24

United States v. Domino,

G2 F Dk 716 CF? Cae. T99B) iiscircssvtccinsvinssinatncsuciyeons 18

United States v. Estrada,

849 F.2d 1304 (10% Cir. 1988) ......c.c0cecccossesereseceses 17

United States v. Fazzio,

FOG Ae BERS EE CR, FORD) wiscvcensntaniticlisenitiasonis 17

United States v. Hayman, e

362 OS. DD, 729. Ch, BES (TRI) tececcesinerinnsess 20, 25

Waley v. Johnston,

316 US. 101, 62 5.00. S66 (19RD) a cevccaisovsssovesncosons 23

Statues

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BB USA. § TISAI) CE DD srssviosescrericscscnibiciarsinimtteiniconiie 2

US CO a ee 23

SS 2

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NE ssc cccsscrisscesconsvsvsessesnssssscovsseecvcescosevs passim

Constitutional Provisions :

BREE AMERIIED, V cccscsesessersesseecovesvevovesovenseeesverees passim

nS) ee passim

Ee): | Ee re passim

Guidelines

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Be TE ETD nce: coneceecececcesececesoneeseseseeess 17

ee 16

ova secevessscrvovinsedevecressssvsevencevenerssereveseove 16

U.S.S.G. § 3B1.1, Application Note 2........cccccescseeeseeeees 16

U.S.S.G. Amendment 500.............ccccccccsscscsseeeceee Senacioaieapans a

PETITION FOR WRIT OF CERTIORARI

TERRY COLEY, by and through undersigned

counsel, submits this Writ of Certiorari from the Fifth

Circuit Court of Appeals opinion and requests review

of the opinion filed on June 21, 2006. The opinion

affirmed the decision in the United States District

Court for the Eastern District of Texas, Civil Action No.

5:04-CV-108.

OPINION BELOW

The Fifth Circuit Court of Appeals filed an

opinion on June 21, 2006 affirming the district court's

decision. This unpublished opinion is reproduced in

the Appendix at A-1.

JURISDICTION

Pursuant to Supreme Court Rule 10, jurisdiction

in the Supreme Court is now appropriate, as the Fourth

Circuit is believed to have entered a decision that is in

conflict with the United States Constitution and

precedent of the Supreme Court.

CONSTITUTIONAL AUTHORITY INVOLVED

FIFTH, SIXTH AND EIGHTH AMENDMENTS

[Reproduced in the Appendix hereto at A-11]

STATEMENT OF THE CASE

On August 5, 1988, Petitioner was among fifteen

individuals named in a 19-Count Indictment, returned

by the Grand Jury for the Northern District of Georgia.

Of these nineteen Counts, Petitioner was specifically

charged with the following: Count One - from a time

unknown, but at least by March 5, 1995, and continuing

until the date of the indictment, conspiracy to violate

21 U.S.C. § 841(a)(1) by intentionally and unlawfully

possessing with the intent to distribute more than five

kilograms of cocaine, all in violation of 21 U.S.C. § 846;

Count Five - possession of cocaine on January 4, 1988,

in violation of 21 U.S.C. §§ 841{a)(1) and 18 U.S.C. 2;

Count Six - possession in excess of 500 grams of

cocaine, on January 13, 1988, in violation of 21 U.S.C.

§§ 841 (a)(1) and 18 U.S.C. 2; and Count Twelve - on or

about May 30, 1988, utilizing the telephone to facilitate

the carrying on of the possession of cocaine, in

violation of 18 U.S.C. §§ 1952(a)(3) and (2).

Petitioner was arrested for the charged offenses

on August 10, 1988, in the Southern District of Florida.

Petitioner was subsequently arraigned on August 31,

1988, at which time he entered a plea of not guilty to all

charges against him. The case was then bound over for

jury trial.

On February 22, 1994, after a six-year span,

Petitioner and two co-defendants finally appeared for

the start of trial. On March 11, 1994, the jury found

Petitioner guilty as to Counts One, Five, and Six of the

Indictment. Petitioner was found not guilty of the

charge in Count Twelve.

On May 26, 1994, Petitioner appeared for

sentencing. After hearing arguments as to the relevant

sentencing factors, the district court imposed a 188-

month term of imprisonment. Petitioner was also

assessed with a fine of $25,000.00. Petitioner, through

counsel, appealed his convictions and sentence to the

Eleventh Circuit. The Eleventh Circuit Court of

Appeals affirmed the Appeal on March 28, 1997.

Petitioner did not file a Petition for Certiorari, nor did

he file a 2255, within the one-year time limitation due

to the fact that he became a fugitive. Petitioner filed his

2255, on August 16, 2002, after consulting with counsel.

Petitioner retained counsel for his 2255 on October 1,

2001. Post-conviction counsel uncovered a sentencing

error and advised Petitioner to pursue a remedy with a

2255 or 2241 in order to avoid a miscarriage of justice

and/or a violation of his Constitutional due process

rights under the Fifth, Sixth, and Eighth Amen“ments

to the United States Constitution.

On July 9, 2003, the United State District Court

for the Northern District of Georgia (Atlanta Division)

denied the 2255 Petition. The Certificate of

Appealability (COA) was filed on August 26, 2003. The

Certificate of Appealability was denied on October 6,

2003. The basis for the denial of the 2255 was a time bar

for failure to timely file the 2255 and the exercise of due

diligence in pursuing the question of law presented.

On May 17, 2004, Petitioner filed a Habeas

Corpus Petition, pursuant 28 U.S.C. § 2241, asserting

that the 2255 was inadequate and ineffective to protect

Petitioner’s due process rights, and that, as a fugitive,

Petitioner could not have obtained the relevant

information to note the error made at sentencing.

Additionally, Petitioner stated that he was not “in

custody” and, therefore, a 2255 could not have been

filed. On May 11, 2005, the United States Magistrate

issued a Report of Recommendation (R&R) denying

relief on the 2241. [A-6] Petitioner objected to the

Magistrate’s R&R on June 6, 2005. A District Court

order adopting the Magistrate’s R&R on the 2241, was

filed in the United States District Court for the Eastern

District of Texas on July 6, 2005. [A-3] The petition was

dismissed with prejudice for lack of jurisdiction,

however, the issues were dismissed without prejudice.

A timely Notice of Appeal was filed to address

the 2241 Petition on August 2, 2005. The 2241 was

denied by the Fifth Circuit Court of Appeals on June

21, 2006. [A-1]

STATEMENT OF FACTS

The facts of this case are taken from the Direct

Appeal and 2255 briefs.

The charges against Petitioner were the result of

an investigation into the drug-dealing activities of

Clarence McIntyre (Mcintyre). McIntyre was said to

have been involved with the distribution of cocaine in

the Northern District of Georgia. According to the

investigative reports, McIntyre started distributing

cocaine in the early 1980's with Milton Johnson. These

two worked with, or employed, three other

individuals. During the early stages of the distribution

scheme, Mcintyre and/or Johnson would utilize

numerous suppliers in order to acquire their cocaine.

Petitioner and Mclntyre knew one another

through their respective sisters, both of whom went to

college together. With Petitioner allegedly having

difficulties with authorities in Birmingham, and given

that McIntyre had dissolved his partnership with

Johnson, Petitioner was offered a partnership in

MclIntyre's Atlanta operation. Petitioner accepted the

offer. The supposed agreement was that (i) Petitioner

would acquire the cocaine; (ii) McIntyre would

distribute the cocaine; and (iii) both of them would

provide half of the financing for the cocaine being

bought. In fulfilling his part of the agreement, Petitioner

was said to have arranged the acquisition of the cocaine

in Miami, and the delivery to McIntyre's couriers.

On January 4th and 13th, 1988, Petitioner and

McIntyre were involved with the sale of cocaine.

Unfortunately for Petitioner, the sales were to

undercover Agents who, through the wearing of wires,

were able to tape the transactions as they occurred.

Both Petitioner and McIntyre were arrested after the

January 13th transaction.

Petitioner was sentenced on May 26, 1994.

During this proceeding, Petitioner argued the

following points: {i) drug quantity attributed to him;

and (ii) the adjustment for the alleged aggravating role

in the offense. As to the drug quantity, the district

court found that there was sufficient showing that the

amount of cocaine attributable to the conspiracy was

between five and fifteen kilograms. [Sentencing

Transcript: 39]. As to role in the offense, the district

court did not find that the upward adjustment was

warranted, but did not find that a departure may be

applicable for Petitioner’s management of funds.

[Sentencing Transcript: 49, 50].

After also determining that Petitioner did not

obstruct justice, and that he was not worthy of a

reduction for acceptance of responsibility, the district

court did impose a 2-point upward departure for

Petitioner's management of the funds associated with

the conspiracy. [Sentencing Transcript: 66]. Having

decided the relevant sentencing factors, the district

court imposed a 188-month term of imprisonment

upon Petitioner, with a fine in the amount of

$25,000.00.

After the imposition of sentence, Petitioner was

granted the benefits of (i) having his bond continued

pending the appeal; and (ii) being allowed to self-

surrender at the time and place so designated by the

Bureau of Prisons.

The Petitioner, through counsel, went forward

with an appeal of his conviction and sentence. The

‘appeal raised three issues, to wit: (i) Whether

Petitioner’s case should have been dismissed for

violation of the Speedy Trial Act, 18 U.S.C. 3161, et. seq.;

(ii) Whether the Petitioner’s case should have been

dismissed for violation of his Sixth Amendment right

to a speedy trial; and (iii) Whether the District Court

erred in imposing a two-point upward departure in

lieu of an aggravating role adjustment.

The Eleventh Circuit Court of Appeals affirmed

the Petitioner’s convictions and sentence on March 28,

1997. However, while the Petitioner subsequently

received notice of the time and place of his self-

surrender, he failed to appear for the execution of his

sentence. On April 2, 2001, Petitioner was re-arrested

and incarcerated, pursuant to the original sentencing

order of the district court.

On October 1, 2001, the Petitioner retained

counsel to review and evaluate what he believed to be

errors in his sentencing proceedings

A 2255 petition was filed as soon as the illegal

sentencing issues were detected. The three issues

raised on the 2255 petition were: (1) Whether the

Petitioner’s relevant conduct subjected him to a base

offense level of thirty-four (34) when the finding of the

District Court warranted only a level thirty-two (32)

resulting in a complete miscarriage of justice; (2) The

District Courts position on an upward departure to

Petitioner’s guideline range constituted an error as a

matter of law, which resulted in the Petitioner being

subjected to an illegal sentence; and (3) Counsel

provided ineffective assistance of counsel in failing to

address Issues one and two.

A 2255 was filed on or about August 15, 2002 in

the United States District Court of the Northern District

of Georgia, the location of jurisdiction of the conviction

of Coley. The District Court's order of July 9, 2005

denied Coley relief as a result of a “time bar” for not

having exercised diligence or having made an effort to

discover the facts that underlie the basis for the issues

presented, referring to his fugitive status as a factor in

the time bar.’

; Coley was a fugitive from approximately 1997 until

he entered custody of the Federal Bureau of Prisons on April

2, 2001. :

Coley’s conviction was affirmed by the Court of

Appeals on March 28, 1997. He was rearrested and

incarcerated on April 2, 2001. The 2255 would have

been due on March 28, 1998, or approximately ninety

days later, due to the ninety-day tolling period if a

defendant wishes to file a Petition for Certiorari. with

the Supreme Court. See Kapral vs. United States 166

F.3d 565 (3'4 Cir. 1999),

Due to the time bar of the 2255, a 2241 was filed

on October 25, 2005 and set forth the following issues:

(1) The district court finding that the drug quantity was

between 5-15 kilograms of cocaine warranted a base

offense level of Thirty-Two (32) - not the Level Thirty-

Four (34), which was applied; (2) There existed a

misapplication of the Sentencing Guidelines, resulting

in Petitioner sentencing range, and ultimate sentence,

to be higher than warranted, resulting in an illegal!

sentence and a _ miscarriage of justice; and

(3) Petitioner’s prior counsel was ineffective through (i)

allowing the matter to go to trial; and (ii) failing to

adequately represent Petitioner at sentencing and/or on

appeal.

On May 1, 2005, the United States Magistrate

issued a Report and Recommendation denying the §

2241 Petition. Petitioner filed Objections to the

Magistrate's Report and Recommendation on June 6,

2005. A court order adopting the Magistrate's Report

and Recommendation was issued on July 6, 2005. The §

2241 Petition was dismissed with prejudice for lack of

jurisdiction, however, the issues were dismissed

without prejudice. A timely Notice of Appeal was filed

to address the § 2241 Petition on August 2, 2005. The

Fifth Circuit Court of Appeals denied the appeal on

June 21, 2006. This Petition for Certiorari follows.

Under the jurisdiction of the Supreme Court of

the United States, the Petitioner respectfully seeks

review on Certiorari from the decision rendered by the

Fifth Circuit Court of Appeals on June 6, 2006, denying

Petitioner's request to be heard on the § 2241, as a

result of a sentencing error that deprived the Petitioner

of life and liberty, without due process of law.

Pursuant to Supreme Court Rule 10, jurisdiction

in the Supreme Court is now appropriate as the Fifth

and Eleventh Circuit Courts of Appeal are believed to

have entered decisions that are in conflict with the

United States Constitution and the purpose of a 2241

habeas corpus proceeding.

REASONS FOR GRANTING THE WRIT

A writ in this case should be granted, as this

question represents a unique statement _ of

Constitutional law as applied to the use of the habeas

corpus petition, pursuant to 28 U.S.C. § 2241, in the

absence of the ability, or adequacy of the § 2255

petition when a person has become a fugitive during

the time frame when a § 2255 petition should have

been filed. A 2241 petition is the same as the § 2255

petition and can take the place of a § 2255 when a

Constitutional right may be violated, but for the

opportunity to redress the matter in a court of law. It

also avoids a miscarriage of justice. Though the

Supreme Court has said fugitive status waives certain

Constitutional rights, the question this Court needs to

10

address is if a § 2255 cannot be filed because a

defendant is not in custody, and filing one when

placed in custody results in a time bar, can a 2241 be

used to correct a Constitutional error in light of the

stated purpose of 2241 procedures? Essentially, does

the fugitive dismissal rule bar a 2241 from being filed

when the 2255 was time barred based on fugitive

status.

When Petitioner was first sentenced, the district

court made a sentencing error that deprived the

Petitioner of his right to liberty.

ISSUE I

DOES THE FUGITIVE DISMISSAL

RULE VIOLATE A DEFENDANT'S

FIFTH, SIXTH, AND __ EIGHT

AMENDMENT RIGHTS WHEN THE

2241 IS BARRED AS INSUFFICIENT

TO OVERCOME THE INADEQUACY

OF A 2255 REQUIREMENT AND THE

DEFENDANT WAS A_ FUGITIVE

DURING THE TIME A 2255 COULD

HAVE BEEN TIMELY FILED?

As previously stated, Petitioner was a fugitive

from approximately 1997 until his re-arrest on April 2,

2001. Petitioner's conviction was affirmed in the

Eleventh Circuit Court of Appeals on March 28, 1997.

Technically, Petitioner had one-year and ninety days in

which to file a § 2255 petition. Any § 2255 would have

been due on, or about, June 26, 1998. Petitioner

11

remained a fugitive during this time period. He was re-

arrested and placed in custody on, or about, April 2,

2001. Thereafter, Petitioner contacted counsel to

evaluate his case. A discovery of a clear error in the

sentencing process resulted in a sentence that was in

excess of that which was authorized by law. Since the §

2255 could not be filed, though one was filed- in an

attempt to obtain relief, the § 2241 would be the only

alternative remedy for which Petitioner could avail

himself under the theory of the "safety hatch." Clearly a

§ 2255 is inadequate and ineffective to test the legality

of the sentence that was imposed. Petitioner was not in

custody at the time in which the 2255 should have been

filed and, therefore, the sentence was not being

executed at the time in which he was on fugitive status.

Custody is required in order for a 2255 to proceed. 28

U.S.C. § 2255. Even assuming arguendo, that custody is

not required, a defendant can avail himself of the 2241

if he can prove that the 2255 is inadequate or

ineffective to test the legality of the conviction. In this

case, the 2255 was time barred in light of the

Petitioner's fugitive status and, therefore, is inadequate

to test the legality of his sentence. To keep the

Petitioner from filing a 2241, and having relief

determined on the merits of the complaint, deprives

him of his due process rights and keeps him in prison

beyond the scope of the requirements of a legal

sentence, in violation of his Fifth and Sixth

Amendment rights to due process, and to be free of.

cruel and unusual punishment through the deprivation

of his liberty in violation of his Eighth amendment

rights.

12

In Ortega-Rodriguez_ v. United States, 507 U.S.

234; 113 S.Ct. 1199 (1993), this Honorable Court

discussed the fugitive dismissal rule. This rule

generally applies where an appeal is dismissed, or a

sentence is imposed, while a defendant is on fugitive

status. In Ortega-Rodriguez, the Petitioner and co-

defendants were convicted of possession with intent to

distribute, and conspiring to possess with intent to

distribute, cocaine. Petitioner Rodriguez failed to

appear at sentencing but the district court sentenced

him in absentia to 19 years, 7 months, followed by five

years of supervised release. Subsequently, the

Petitioner was arrested and sentenced to 21 months

followed by three years of supervised release for the

fugitive conviction. Rodriguez filed a motion for a

judgment of acquittal and to vacate and resentence on

the cocaine conviction. The district court denied the

motion for judgment of acquittal, but granted the other

motion and imposed a new sentence. Rodriguez filed a

timely notice for review, in which the government filed

a motion to dismiss on the fugitive dismissal rule. The

court granted the government's motion, but the

Supreme Court vacated the order and remanded. On

remand, the court denied the motion to dismiss and

reversed because there was insufficient evidence. The

Eleventh Circuit found that the government would not

suffer any undue burden if the appeal were granted,

and that there would not be any potential interference

with the appellate process.

By analogy, this same condition would apply to

Petitioner Coley’s case. There is no burden suffered by

the government for granting 2241 relief and there

13

would not be any interference with the judicial

processes that are available to the Petitioner in

determining the legality of his sentence.

Ortega-Rodriguez, held that, under normal

circumstances, a fugitive's appeal must be dismissed

unless the defendant can show (1) granting the appeal

is not likely to result in an undue burden on the

government and (2) the defendant's flight has not

resulted in, nor will not result in, significant

interference with the operation of the judicial process

in either the district court or the appellate court. When

examining this test, the court should consider the

availability of evidence and witnesses in the event of

remand for new trial, as well as any proof that may no

longer be available and overburdens the government in

defending against the allegations. In the instant case,

Petitioner Coley’s circumstances do not overburden the

government or deprive them of any relevant evidence

that would limit their ability to defend against the

question presented. There is no undue burden to the

government, and there is no interference with judicial

process of either the district court that must make the

decision on the issue or the Court of Appeals. Every

Federal Court is familiar with the Federal Sentencing

Guidelines. Whether the District that sentenced the

Petitioner is involved or not, Petitioner's rights can be

addressed through any Federal District Court in the

United States via 2255 or 2241. The guidelines are

judicially universal in their application. Due to clear

error in Petitioner's case, and the sentence that was

imposed, overturning the sentence and resentencing of

Petitioner can be done in any jurisdiction. (11" Circuit

14

or 5"). Petitioner received a 2-point sentencing increase

that was not applicable by law. Therefore, Petitioner's

fugitive status should not be a bar to relief, pursuant to

2241 considerations. Since a 2255 is time barred, the

gate keeping effect of the 2241 prevails in which to give

Petitioner the relief requested. If Petitioner cannot avail

himself of a 2241, what recourse is there for a

miscarriage of justice? Serving a longer sentence than is

legally applicable, regardless of the time bar or fugitive

status requires relief to avoid an unconstitutional

result. Denying a 2255 as time barred, and then

denying the 2241 because the court said the Petitioner

did not show the 2255 was inadequate or ineffective, is a

catch 22 result, creating no avenue for relief and causing

Petitioner to serve an illegal sentence, one which

constitutes cruel and unusual punishment without due

process of law. The 2255 is inadequate based on the

Eleventh Circuit Opinion, due to the time bar which

occurred while Petitioner was on fugitive status and not

in custody, or aware of the sentencing error.

Clearly the question turns on whether a person

should be deprived of liberty, even though they

were not charged, and convicted, in a court of law,

by remaining in jail beyond the scope of what

legally should be the sentence if the error had not

occurred.

There is Supreme Court case law that says that

fugitive status can cost you procedural consequences,

resulting in a deprivation of a Constitutional right. See

Ortega-Rodriquez v. United States, supra; and Michel v.

Louisiana, 350 U.S. 91, 76 S.Ct. 158 (1955). However,

the issue presented to the Supreme Court in these cases

15

was not. similar to what is being asserted here.

Significantly, Coley attempted to file a § 2255, but it

was determined to be time barred. The time bar was a

result of his fugitive status. However, because of the

relationship between the 2255 and the 2241,

procedurally and in content, there is no reason to

believe that the gate keeping provision of the 2241

cannot be used to provide the relief requested. To hold

otherwise would place the Petitioner in custody

without due process of law. This is not opening the

floodgates for all defendants to come forward and state

they have been deprived of their due process rights

simply because they could not meet the deadline of the

“2255. The limitations are clear in the instant case, in

that the number of similarly sentenced fugitives is as

limited as would be the type of legal errors Petitioner’s

case represents.

A fugitive, without being charged with that

status, and convicted, should not be held in custody

longer than the original sentence requires by law. Thus,

the 2241 falls within that exception circle, wherein a

person who would be incarcerated beyond the legal

parameters of the law may avail himself of such relief.

A person who could not have effectively raised the

claim of innocence at an earlier proceeding, and had no

access to judicial review, is entitled to seek habeas

corpus relief, pursuant to 28 US.C. § 2241. See

Triestman v. United States, 124 F.3d 361 (1997).

16

A. Petitioner's Claim of Error

The district court's findings at sentencing, as to

the drug quantity, were 5 to 15 kilograms of cocaine,

which should have resulted in a base offense level of

Thirty-Two (32). See U.S.S.G. § 2D1.1(c)(4). With a

Criminal History Category of One (I), the applicable

sentencing range was 121-151 months. A two-point

upward departure was added to make the sentencing

range level 34 with 151-188 months incarceration. The

sentencing court, however, erroneously sentenced

Petitioner at level 36, 188-235 months, due to an

oversight in the bases offense level when the drug

quantity finding was made.

The District Court specifically referenced that

the 2-point upward adjustment was applicable for role

in the offense, pursuant to Application Note 2 to

U.S.S.G. § 3B1.1. [Sentencing Transcript pg. 66]. The

problem with the position of the District Court was

that this Application Note, which gave rise to the two

additional points for role, did not become effective

until November 1, 1993, (see U.S.S.G. Amendment 500),

which was over five years after the date the conspiracy

ended. This resulted in a sentence under guideline

level 36, instead of the correct level 32 when coupled

with the quantity base offense level.

As the punishment in this case, by way of the

use of the departure provisions of Application Note 2

to U.S.S.G. § 3B1.1, was significantly more severe than

what it would have been under the guidelines in effect

at the time of the offense, an ex post facto violation

existed when Petitioner was sentenced. Petitioner's

17

sentence should have been within the range of 121-151

months, level 32. The Petitioner did not receive a

correct sentence, counsel never objected or appealed

the issue, and Petitioner was a fugitive when his 2255

would have been due on a claim of ineffective

assistance of counsel. Therefore, by not being in

custody to file a 2255, and being time barred,

Petitioner’s only remedy was, and is, a 2241.

B. Brief history surrounding the application

of Habeas Corpus Petitions

Habeas relief, pursuant to 28 U.S.C. § 2255, is

afforded when the conviction, or sentence, is defective

by reason of an error that is neither jurisdictional, nor

Constitutional, but, nonetheless, is fundamental. See

United States v. Estrada, 849 F.2d 1304 (10'* Cir. 1988),

Larson v. United States, 833 F.2d 758 (8'* Cir. 1987), and

United States v. Fazzio, 706 F.2d 1115 (11" Cir. 1983).

“Ordinarily, a defendant is to be sentenced according

to the version of the Sentencing Guidelines in effect at

the time of sentencing.” See U.S.S.G. § 1B1.11(a).

However, if the use of said version of the Guidelines

would violate the ex post facto clause of the

Constitution, the Sentencing Guidelines in effect at the

time the offense of conviction was committed, are to be

used. See U.S.S.G. § 1B1.11(b)(1). An ex post facto

problem arises if the version of the Guidelines in effect

at the time of sentencing makes more onerous the

punishment for crimes committed before its enactment.

Miller v. Florida, 482 U.S. 423, 435, 107 S.Ct. 2446, 2453-

54 (1987) (internal quotes and citation omitted). See also

18

United States v. Domino, 62 F.3d 716 (5'* Cir. 1995) (a

sentence that is increased pursuant to an amendment

to the guidelines effective after the offense was

committed, violates the ex post facto clause).

The United States Constitution and laws

authorize federal habeas corpus for both State and

Federal prisoners. See United States v. Domino, 62 F.3d

716 (5 Cir. 1995) (federal habeas corpus used to

challenge incarceration or procedures which are

contrary to statute or Constitution). Rules regarding

procedure for the application in the United States

District Court for relief, pursuant to 28 U.S.C. § 2241,

are by a person in custody pursuant to a judgment of a

federal court, for determination if such custody is in

violation of Constitutional laws, or treaty, of the United

States. Ali v. Gibson, 572 F.2d 971 (3"4 Cir. 1978).

Petitioner Coley should not be deprived of a

review on the merits of his complaint that actually

places him in custody for a longer term of

imprisonment than would be warranted by fact or by

law, resulting in a miscarriage of justice and a violation

of his Constitutional rights. If the court uses

Petitioner’s fugitive status to ignore a legal issue of

Constitutional proportions, then Petitioner is being

punished for that fugitive status without being

charged, and convicted, further violating his due

process rights.

The writ of habeas corpus under § 2241 shall be

extended to a prisoner if (1) he is in custody under or

by color of authority of the United States, or is

committed for trial before some court thereof; (2) he is

in custody for an act done or omitted in pursuance to

19

an act of Congress or order of process, judgment, or

decree of the court or judge of the United States; (3) he

is in custody in violation of Constitutional laws or

treaties of the United States; (4) he being in a system of

foreign state or domicile therein and is in custody for

an act done or omitted under any alleged right, title or

authority, privilege, protection or exemption claimed

under the commission, order, or sanction of any

foreign state, or under color thereof, the validity and

effect of which depend upon a law of nations; or (5) it

is necessary to bring him into court to testify for a trial.

Swan v. Pressley, 430 U.S. 372, 97 S.Ct. 1224.

The Judiciary Act of 1789, Chapter 20, Sections 1

and 14, empowered federal courts in the district in

which a prisoner was confined to issue a writ of habeas

corpus if the prisoner was “in custody” under or by

color of authority of the United States. See McClesky v.

Zant, 499 U.S. 467, 477-78, 111 S. Ct. 1454 (1991). In

1867, a writ was made available to any federal prisoner

restrained of his or her liberty in violation of the

Constitution, or of any treaty or law of the United

States. See Act of February 5, 1867, Chapter 28, §§ 1

and 14, stat. 385, see Kaufman v. United States, 394 U.S.

§§ 217, 89 S.Ct. 1068 (1969). Today federal courts

continue to retain jurisdiction. to entertain habeas

petitions from federal prisoners “in custody in

violation of Constitutional laws or treaties of the

United States.” 28 U.S.C. § 2241(c)(3).

In 1948, by enacting 2255, which challenges

collateral attacks by federal prisoners to the sentencing

court (rather than to the court of -the district of

confinement) so that they can be addressed more

20

efficiently, Congress restricted (but did not eliminate)

the right of federal prisoners to proceed under

2241(c)(3). See generally, United States v. Hayman, 342

U.S. 205 (1952) (detail and the history and purpose of

the 2255). Section 2255 is not intended to eliminate the

collateral rights of federal detainees in any way. It was

simply designed to serve as a convenient substitute for

judicial habeas corpus remedy.

Section 2255, as originally enacted, and as

amended by the AEDPA, contains an explicit

exception to the general rule that a federal prisoner

must use 2255 instead of seeking a writ of habeas

corpus under 2241 “an application for writ of habeas

corpus on 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 the remedy by motion is

inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255. See Triestman v. United

States, 124 F.3d 361 (2™4 Cir. 1997). Coley filed a 2255

which was dismissed as time barred. The rule does not

say Petitioner has no further habeas recourse.

Where a 2255 is inadequate or ineffective to test

the legality of the prisoner’s detention, such remedy

may be found in 28 U.S.C. § 2241. See Sanders v.

United States, 373 U.S. 1, 13-14, 83 S. Ct. 1068 (1963).

Here the court considered whether to apply a strict

res judicata rule to govern second and successive 2255

petitions and concluded that even assuming the

Constitutionality of incorporated res judicata in 2255

21

motions, such a provision would probably prove to be

completely ineffectual, in light of the further provision

in this section that habeas corpus remains available to a

federal _prisoner_if the remedy by motion _ is

“inadequate _or ineffective.” [Emphasis added]. A

prisoner barred by res judicata would seem as a

consequence to have an “inadequate or ineffective”

remedy under 2255 and, thus, be entitled to proceed in

federal habeas corpus. See Mead v. Parker, 464 F.2d

1108, 1111 (9 Cir. 1972) (finding that “the remedy by

motion under 2255, assuming that it exists (in a case in

which prisoners are seeking injunctive relief in the

form of access to legal materials) is ‘inadequate’ and

perhaps ineffective, as well, since the sentencing court

would not have had jurisdiction over the warden

whose actions were being challenged. We think a

remedy by motion can be inadequate, or ineffective, to

test the legality of...detention only if it can be shown

that some limitation of scope or procedure would

prevent a § 2255 proceeding from affording the

prisoner a full hearing and adjudication of his claim of

wrongful detention.” See Sanders, 373 U.S. at 14-15 and

Parker at 1111. [Emphasis added]. The terms

inadequate and ineffective must mean something or

Congress would not have enacted it in 1948, and

reaffirmed it in the AEDPA. See National Union Fire

Insurance Company v. City Savings, 28 F.3d 376, 389

_ (34 Cir. 1994) (in construing a statute, we are bound to

give effect, if possible, to every word Congress used).

See Reiter v. Sonotone Corporation, 442 U.S. 330, 99 S.

Ct. 2326 (1979)(and without good reason, we will not

assume the portion of a statute is superfluous, void, or

22

insignificant). See Triestman, supra, at 376-77. Serious

Eighth Amendment and due process questions arise

with respect to the AEDPA if courts were to conclude

that, by amending 2255, Congress denied prisoners the

right to collateral review in their cases. Where no other

avenue of judicial review is available for a party who

claims that he or she is factually, or legally, innocent as

a result of a previously unavailable statutory

interpretation, he/she would be faced with a thorny

Constitutional issue. In Re: Dorsainvil, 119 F.3d 245 at

248 (3 Cir. 1997). See also Pottinger v. City of Miami,

810 F.Supp. 1551, 1565 (S.D. Fl. 1992) (finding that a

person “may not be convicted under the Eighth

Amendment” of innocent conduct).

C, Deprivation of Constitutional Rights

Petitioner is in the custody of federal authorities

and has exhausted all possible administrative appeals

and/or any further administrative appeals would prove

futile and is being held on a sentence that violates his

Fifth, Sixth, and Eighth Amendment rights.

D. Inadequacy of the 2255 Creates 2241

Jurisdiction

A federal conviction or sentence is attackable in

a 28 U.S.C. § 2241 proceeding to the same extent that a

federal conviction or sentence can be attacked in a

proceeding under 28 U.S.C. § 2255. This means that in

§ 2241 proceedings, relief from a federal conviction, or

sentence, may be granted on the following grounds:

23

The conviction is void for lack of personal

or subject matter jurisdiction. See United

States v. Addonizio, 442 U.S. 178, 99 S.Ct.

2235 (1979) (habeas corpus has long been

available to attack convictions and

sentences entered by a court without

jurisdiction).

The conviction oor sentence is

unconstitutional and results from the

denial of a federal Constitutional right or

arrest on an unconstitutional statute.

[Emphasis added]. See Waley _v.

Johnston, 316 U.S. 101, 62 S.Ct. 964 (1942)

(habeas corpus extends to cases where the

conviction has been in disregard of an

accused’s Constitutional rights).

The sentence is in excess of the lawful

maximum. See Sunal v. Large, 332 US.

174, 67 S.Ct. 1588 (1947) (where

Constitutionality of federal statute under

which conviction was had, is attacked,

habeas relief has sometimes been

granted). Here Petitioner Coley is

subjected to increased incarceration on a

guideline provision founded in a statute,

18 U.S.C. § 3553.

The conviction, or sentence, is for some

other reason, fundamentally, or

egregiously, defective, even though the

error is not jurisdictional or

Constitutional. See United States v.

Addonizio, supra, (unconstitutional error

24

does not provide basis for collateral

attack unless the claimed _ error

constituted a fundamental defect which

inherently results in a _ complete

miscarriage of justice). See also Davis v.

United States, 417 U.S. 333, 94 S.Ct. 2298

(1974) (non-jurisdictional and _non-

Constitutional claim herein that a claim

that a retroactive change in law rendering

the Petitioner’s conduct non-criminal

may be asserted in federal habeas corpus

proceedings attacking federal conviction).

Even though a 2255 is generally exclusive for

testing the validity of a judgment and sentence, 2241

remedy is available where the 2255 is inadequate, or

ineffective, in testing the merits of the complaint. The

2255's inadequate or ineffective provisio, also called the

“safety hatch,” was retained by the AEDPA. If, in any

particular case, the 2255, as amended by the AEDPA,

does not provide an adequate substitute for habeas

corpus, the prisoner can seek 2241 habeas relief. In Re:

Davenport, 147 F.3d 605 (7 Cir. 1998), and Triestman

v. United States, 124 F.3d 361 (2"4 Cir. 1997).

Under the inadequate or ineffective provisio of

the 2255, a prisoner can take advantage of the gate

keeping provision of the 2241. The inadequate or

ineffective provisio does not refer solely to practical

limitations on the petitioner’s ability to obtain 2255

relief, but also includes legal inadequacies.

25

A § 2241 petition that seeks to challenge a

federal sentence or conviction, effectively acting as a §

2255 motion, may only be entertained when the

Petitioner establishes that the remedy provided for

under § 2255 is inadequate or ineffective. See United

States v. Hayman, 342 U.S. 205, 72 S. Ct. 263 (1952).

Clearly the 2255 is inadequate and ineffective to

challenge the question of law being presented. Nothing

in the Constitution requires that a defendant be

punished for a claim of innocence or an error that is so

plain and blatant that he serves more time in custody

than he is legally responsible for, even if his procedural

default in failing to timely file a § 2255 petition is based

on his own fugitive status.

Though Petitioner bears the burden of

demonstrating a § 2255 remedy is inadequate and

ineffective, Petitioner has made that showing. Circuit

courts have found that a defendant may invoke “the

savings clause” exception when the Constitution

demands it. In this case, the Petitioner will be deprived

of his right to be free of cruel and unusual punishment

under the Eighth Amendment to the United States

Constitution. A violation of the Petitioner’s Fifth and

Sixth Amendment rights, and a miscarriage of justice,

occurs if he serves more time in custody than is

warranted for the crime he was sentenced to, on an

obvious and clear error of legal and Constitutional

proportions. See In Re: Davenport, supra, (noting that §

2241 relief may be available to challenge a conviction or

sentence in order that the prisoner “cannot complain

that the limitations in § 2255 suspended whatever

Constitutional right he might have had under the

26

suspension clause, or conceivably, under the due

process clause, to be allowed to seek Habeas Corpus”).

A claim of actual innocence permits a Petitioner, under

certain circumstances, to utilize § 2241 as a means of

circumventing 2255 restrictions on filing a second or

successive Habeas petition. See Cooper _v. United

States, 199 F.3d 898, 901 (7" Cir. 1999) and also Charles

v. Chandler, 180 F.3d 753, 755 (6 Cir. 1999) (per

curiam).

Level 34 was not applicable to Petitioner’s case,

pursuant to the sentencing guidelines for 5-15 kilos of

cocaine. He was not in custody and could not avail

himself of a timely 2255, therefore, to avoid serving

more time in custody than the law requires, a 2241

must be permitted in order to avoid the deprivation of

liberty afforded all citizens under the United States

Constitution. A 2241 can be used to affect the

Petitioner’s liberty interest in place of a 2255, despite

Petitioner’s fugitive status at the time the 2255 would

have been timely. Because a 2241 protects similar rights

as a 2255, Petitioner can avail himself of the 2241

procedures to correct a _ deprivation of his

Constitutional rights. The similarity of both the

provisions, and the preservation by Congress of both

provisions, indicate Congressional intent to retain 2241

relief where the 2255 is inadequate. Petitioner was not

in custody to file a 2255, a requirement of such a

provision. His fugitive status should not waive his

liberty interests. There are limitations to the

deprivation of Constitutional rights waived while a

fugitive, however, these limitations do not apply to

2241 relief.

27

This Honorable Court should .remand_ the

Petitioner’s 2241 for the relief requested as the 2241

protects similar rights to a 2255 when the 2255 is

inadequate to redress clear liberty and due process

violations. Petitioner’s lack of custody at the time his

2255 was due, and the error in sentencing, allow

Petitioner to effectuate relief to avoid a deprivation of

freedom. The government is not prejudiced by such

action. This Honorable Court must determine if the

2241 can be used to protect Petitioner’s Constitutional

rights due to its similar provisions of the 2255, and the

only reason Petitioner could not avail himself of the

2255, was due to his fugitive status. =

~ CONCLUSION

The petitioner, TERRY COLEY, respectfully

requests that this Court issue a Writ of Certiorari to

review the important questions presented herein.

Respectfully submitted this, the 19 day of

September, 2006.

Submitted by,

Marcia G. Shein

Counsel of Record

Georgia Bar No. 639820

Federal Bar No. 53667

2392 North Decatur Road

Decatur, Georgia 30033

404 633-3797

404 633-7980(fax)

Marcia@msheinlaw.com

A-i

TABLE OF CONTENTS

Appendix to Petition

Page

Opinion

U.S. Court of Appeals for the Fifth Circuit

OE TE BE ee iicicitceihedtickiciiinniccninintinseiciad A-1

Order of

The Honorable David Folsom

Re: Adopting Report and Recommendation of

U.S. Magistrate Judge

GRE FI Boe ierencineninciisnsisciiididaeeiania A-3

Final Judgment

OTIS FREY 6, Bares rccennsinntnicticoresierviivtinsdiiacnenisiaapa A-5

Report and Recommendation of

Caroline M. Craven, U.S. Magistrate Judge

entered May 11, 2005.-..-0..secacesscssscusecsssenseesseseene A-6

-Constitutional Provisions:

Fre Oc UU a A-11

A-1

United States Court of Appeals

Fifth Circuit

No. 05-41180

Conférence Calendar

TERRY COLEY,

Petitioner-Appellant,

versus

HARLEY G. LAPPIN; WARDEN DAVID JUSTICE,

Respondents-Appellees.

[Entered: June 21, 2006]

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:04-CV-108

Before STEWART, DENNIS, and OWEN,

Circuit Judges.

PER CURIAM:

* 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.

A-2

Terry Coley was convicted of conspiracy to

possess drugs with intent to distribute and possession

of drugs with intent to distribute and sentenced to

serve 188 months in prison and a five-year term of

supervised release. He filed a 28 U.S.C. § 2241 habeas

corpus petition to challenge this conviction and

sentence, and he now appeals the district court's

dismissal of his § 2241 petition. He argues that he

should be permitted to pursue § 2241 relief in

accordance with the savings clause of 28 U.S.C. § 2255

because his fugitive status prevented him from timely

pursuing § 2255 relief. He also presents argument on

the merits of his sentencing claims.

Coley has not shown that the district court erred

in determining that his purported § 2241 petition was

best construed as a § 2255 motion over which the

district court lacked jurisdiction. See Reyes-Requena v.

United States, 243 F.3d 893,904 (5th Cir. 2001); Cox v.

Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir.

1990); Solsona v. Warden, F.C.1., 821 F.2d 1129, 1132 (5th

Cir. 1987). Coley’s contention that he should be

permitted to proceed under § 2241 due to his prior

status as a fugitive is unpersuasive. The judgment of

the district court is

AFFIRMED.

A-3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

TERRY COLEY §

VS. § CIVIL ACTION NO. 5:04cv108

F.C.I.WARDEN §

[Entered: July 6, 2005]

ORDER ADOPTING REPORT AND

RECOMMENDATION

The Court referred the above-entitled and

numbered civil action to United States Magistrate

Judge Caroline M. Craven. The Magistrate Judge

presented for consideration the Magistrate Judge’s

Report, containing proposed findings of fact and

recommendations for disposition of this case. Petitioner

filed objections to the Report.

This Court made a de novo review of

Petitioner’s objections and determined that they lack

merit. This Court finds that the Magistrate Judge’s

findings and conclusions are correct, and adopts them

as the Court’s findings and conclusions. The Court

therefore

ORDERS, ADJUDGES, and DECREES that

Petitioner’s petition (dkt. #1) and supplemental motion

for writ of habeas corpus (dkt. #8) are denied and this

action is DISMISSED WITH PREJUDICE for lack of

jurisdiction and DISMISSED WITHOUT PREJUDICE

regarding all other issues; and

A-4

ORDERS that ail motions not previously ruled

on are denied.

SIGNED this 6th day of July, 2005.

/s/ David Eolsom

David Folsom

UNITED STATES DISTRICT JUDGE

A-5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

TERRY COLEY §

VS. § CIVIL ACTION NO. 5:04cv108

F.C.I. WARDEN _ §

[Entered: July 6, 2005]

FINAL JUDGMENT

This Court considered Petitioner’s case,

rendered the Court's decision by opinion issued this

date, and ORDERS that this action is DISMISSED

WITHOUT PREJUDICE for lack of jurisdiction and

DISMISSED WITHOUT PREJUDICE regarding all

other issues.

SIGNED this 6th day of July, 2005.

/s/ David Folsom

David Folsom

UNITED STATES DISTRICT JUDGE

A-6

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

TERRY COLEY §

VS. § CIVIL ACTION NO. 5:04cv108

F.C.I.WARDEN §

[Entered: May 11, 2005]

REPORT AND RECOMMENDATION

OF UNITED STATE MAGISTRATE JUDGE

Petitioner Terry Coley, a prisoner confined at

FCI Decatur, Georgia, brings this petition for a writ of

habeas corpus challenging his conviction pursuant to

28 U.S.C. § 2241. The petition was referred for findings

of fact, conclusions of law, and recommendations for

disposition of the case.

Procedural Background

Terry Coley was convicted in the Northern

District of Georgia, Houston Division, of conspiracy to

possess with intent to distribute in violation of 21

U.S.C. 846 and possession with intent to distribute in

violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. Petitioner

was sentenced to 188 months imprisonment on May 13,

1994.

Petitioner asserts that he was erroneously

subjected to a higher base level offense than he should

have been, that the court erred in subjecting him to an

upward departure from the base level offense, and that

A-7

Petitioner received ineffective assistance of counsel.

Petitioner previously raised these issues in a § 2255

motion in the Northern District of Georgia, Atlanta

Division (State Court Records, Exhibit A at 6) on August

16, 2002 (State Court Records, Exhibit A at 1). That court

dismissed the motion as barred by the statute of

limitations. State Court Records, Exhibit B at 4.

Petitioner is now challenging his sentence

pursuant to § 2241, as opposed to § 2255. Respondent

filed a response asserting that Petitioner’s application

should be dismissed. Respondent asserts that a § 2241

proceeding is inappropriate for Petitioner’s claims.

Petitioner filed a reply asserting that he should be able

to file a § 2241 proceeding because he is time-barred

from filing a § 2255 motion.

Standards and Discussion

Disposition of the petition is governed by the

Fifth Circuit’s opinion in Pack v. Yusuff, 218 F.3d 448

(5th Cir. 2000). The Fifth Circuit noted that a § 2241

proceeding attacks the manner in which a sentence is

carried out. Id. at 451. A § 2255 motion is the method to

mount a collateral attack on a federal conviction. Id. “A

petition for a writ of habeas corpus pursuant to 2241 is

not a substitute for a motion under 2255.” Id. at 452

(citations omitted). A § 2241 petition that seeks to

challenge the validity of a federal sentence must either

be dismissed or construed as a § 2255 motion. Id.

: The Court noted that § 2255 contains a “savings

clause” that will permit a § 2241 petition to act as a §

2255 motion in rare cases where the petitioner shows

A-8

that the remedy under § 2255 is inadequate or

ineffective. Id. The Court held that a § 2241 petition

may not be used as a substitute for a § 2255 motion just

because the § 2255 motion is time barred, like the

present petition would be if it were construed as a §

2255 motion. Id. at 452-53. The Fifth Circuit also noted

that other circuits have held that a defendant may

invoke the “savings clause” exception “only when the

Constitution demands it, or where otherwise Congress

would violate the Suspension Clause by imposing a

conviction or sentence without allowing for section

2241 relief.” Id. at 453 (citing In re Davenport, 147 F.3d

605, 609 (7th Cir. 1998)). The Fifth Circuit chose not to

decide the precise scope of the “savings clause,” but

held that the petitioner in that case did not establish the

inadequacy or ineffectiveness of the § 2255 remedy. Id.

In In re Davenport, 147 F.3d 605, 609 (7th Cir.

1998), the court concluded that a federal prisoner

should be permitted to seek habeas 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. 147 F.3d at 611. The Court went on to specify

the following qualifications: First, the change in the law

has to be made retroactive by the Supreme Court;

second, the change in the law-must be one that eludes

the permission in Section 2255 for successive motions

and, third, the “change in law” is not to be equated to a

difference between the law in the circuit in which the

prisoner was sentenced and the circuit in which he is

incarcerated. Id. at 611-12.

A-9

Petitioner has not even begun to satisfy the

requirements specified in Davenport. Petitioner is not

citing a change in law. In conclusion, Petitioner is

attempting to impermissibly use a § 2241 petition as a

substitute for a § 2255 motion. He is doing so because a

§ 2255 motion would be time barred. He has not

otherwise shown that a § 2255 motion, if he had timely

availed himself of that remedy, would have been

inadequate or ineffective. Following the Fifth Circuit's

lead in Pack v. Yusuff, the Court concludes that the

Petitioner “may not avail himself of section 2241 relief

in this case.” 218 F.3d at 453. The petition should be

dismissed with prejudice for lack of jurisdiction and

dismissed without prejudice regarding all other issues.

Id. at 454-55.

Recommendation

It is accordingly recommended that the petition

and supplemental motion for writ of habeas corpus

(dkt. #8) be dismissed with prejudice for lack of

jurisdiction and dismissed without prejudice regarding

all other issues.

Objections

If the parties file no objections to the United

States magistrate judge’s report, then the district judge

can conclude that the findings of fact and conclusions

of law in the Report are correct, adopt the report, and

issue a final judgment according to the magistrate

judge’s recommendations. Douglass v. United Servs.

A-10

Auto. Ass’n, 79 F.3d 1415, 1418 (5th Cir. 1996); Homan v.

Comm'r of Soc. Sec. Admin., 84 F. Supp. 2d 814, 815 (E.D.

Tex. 2000). Objections must be written, specific, and

served and filed within ten days after being served

with a copy of this report. Douglass, 79 F.3d at 1427-30;

Eddins v. Excelsior Indep. Sch. Dist., 88 F. Supp. 2d 695,

695 (E.D. Tex. 2000); 28 U.S.C. § 636(b)(1); Fed. R. Civ.

P. 6(a)-(b) and 72(b). A party’s failure to file written

objections to the findings and recommendations

contained in this Report within ten days after service

shall bar that party from the following:

(1) de novo review by the district judge of those

findings and recommendations (Rodriguez v. Bowen,

857 F.2d at 276-77 (5th Cir..1988); Eddins, 88 F. Supp.

2d at 695; see also Douglass, 79 F.3d 1415); and

(2) appellate review, except on grounds of plain

error, of unobjected-to proposed fact findings and

legal conclusions accepted and adopted by the

district court (Meister v. Texas Adjutant General's

Dep’t, 131 F.3d 1120, 1123 (5th Cir. 2001); Eddins, 88

F. Supp. 2d at 695; see also Douglass, 79 F.3d at

1430).

SIGNED this 11th day of May, 2005

/s/ Caroline M. Craven

Caroline M. Craven

UNITED STATES MAGISTRATE JUDGE

A-11 ©

Amendment V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall

any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shal! have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defence.

Amendment VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.