United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 8, 2005
No. 04-50567 Charles R. Fulbruge III
Clerk
PEDRO PADILLA
Petitioner-Appellant,
VERSUS
UNITED STATES OF AMERICA;
Respondent-Appellee
Appeal from the United States District Court
For the Western District of Texas
Before DAVIS and DENNIS, Circuit Judges and LEMELLE, District
Judge.*
PER CURIAM:
Petitioner-Appellant Pedro Padilla (federal prisoner # 58943-
004) is currently incarcerated in Anthony, Texas. Padilla filed a
28 U.S.C. § 2241 petition in the Western District of Texas alleging
that the convicting district court improperly enhanced his sentence
by two levels for possession of a deadly weapon. The district
court dismissed Padilla’s § 2241 petition on the grounds that
Padilla’s petition was properly construed as a § 2255 petition and:
(1) Padilla had not obtained permission from this court to file a
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
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successive § 2255 motion, and (2) even if he had obtained
permission, Padilla needed to file the motion in the sentencing
court——the federal district court for the Southern District of
Florida. Padilla timely appealed. We affirm the district court’s
ruling.
I. Background
Padilla pleaded guilty in the Southern District of Florida to
conspiracy to possess with intent to distribute cocaine and was
sentenced to a 108-month term of imprisonment. The Eleventh
Circuit Court of Appeals affirmed his conviction and sentence. 214
F.3d 1356 (11th Cir. 2000). On March 27, 2003, the federal
district court for the Southern District of Florida dismissed
Padilla’s § 2255 motion as time-barred and alternatively on the
merits, and the Eleventh Circuit denied Padilla a certificate of
appealability.
On May 5, 2004, Padilla submitted a § 2241 petition to the
federal district court for the Western District of Texas, arguing
that the Government failed to abide by the plea agreement it had
signed, and making a claim under Blakely v. Washington, 124 S.Ct.
2531 (2004), that the “convicting district court improperly
enhanced his sentence by two levels for possession of a deadly
weapon.” The district court determined that § 2255 was “the
appropriate vehicle” for Padilla’s claims because Padilla had “not
demonstrated that the remedy provided for under § 2255 [wa]s
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inadequate or ineffective to test the legality of his detention,”
and therefore construed Padilla’s § 2241 petition as a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to § 2255. Because
Padilla had not obtained Court of Appeals permission to file a
successive § 2255 claim and the Southern District of Florida, as
the sentencing court, would be the appropriate court in which to
file such a petition, the district court dismissed Padilla’s claim.
II. Analysis
In reviewing the denial of habeas relief, we review a district
court’s findings of fact for clear error and rulings on issues of
law de novo. Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).
Because Padilla brought his claim under § 2241, he was not required
to obtain a certificate of appealability to proceed on appeal. Id.
Section 2255 provides the primary means of “collaterally
attacking a federal sentence,” Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000), and is the appropriate remedy for “errors that
occurred at or prior to the sentencing.” Cox v. Warden, Fed.
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (internal
quotations marks and citation omitted). Section 2241, on the other
hand, is the proper procedural vehicle in which to raise an attack
on “the manner in which a sentence is executed.” Tolliver, 211
F.3d at 877. A petition filed under § 2241 that attacks errors
that occurred at trial or sentencing is properly construed as a §
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2255 motion. Id. However, a § 2241 petition that attacks custody
resulting from a federally imposed sentence may be entertained
under the savings clause of § 2255 if the petitioner establishes
that the remedy provided under § 2255 is inadequate or ineffective
to test the legality of his detention. Tolliver, 211 F.3d at 878;
see also Christopher v. Miles, 342 F.3d 378, 381-82 (5th Cir.
2003).
Only the custodial court has the jurisdiction to determine
whether a petitioner’s claims are properly brought under § 2241 via
the savings clause of § 2255. Hooker v. Sivley, 187 F.3d 680, 682
(5th Cir. 1999). Because Padilla is incarcerated in Anthony,
Texas, which is in the Western District of Texas, the district
court was the appropriate court to entertain his petition pursuant
to § 2241 and was the appropriate court to make the savings-clause
determination. See id.; Lee v. Wetzel, 244 F.3d 370, 373-75 (5th
Cir. 2001).
For his claim to fall under the savings clause of § 2255
Padilla bears the burden of affirmatively showing that the § 2255
remedy is inadequate or ineffective. See Wesson v. United States
Penitentiary, Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002). As
we explained in Reyes-Requena v. United States, 243 F.3d 893 (5th
Cir. 2001), the savings clause of § 2255 applies to a claim of
actual innocence “(i)that is 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
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foreclosed by circuit law at the time when the claim should have
been raised in the petitioner’s trial, appeal or first § 2255
motion.” Id. at 904.
In Padilla’s first argument——that the Government did not abide
by his signed plea agreement——he makes no claim that the
Government’s alleged failure to follow the terms of the agreement
somehow means that he was convicted of a nonexistent offense.
Because such a showing is required under the Reyes-Requena test,
Padilla’s first claim does not fall under the savings clause of §
2255.
Padilla bases his second argument in support of his § 2241
petition——that his terms of imprisonment exceeded the statutory
maximum for the charged offense——on the Supreme Court’s decision in
Blakely v. Washington, 124 S.Ct. 2531 (2004). After Padilla
submitted his brief in this court the Supreme Court decided United
States v. Booker, which, as Padilla predicted in his brief,
extended Blakely’s holding to the federal sentencing guidelines.1
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In Blakely, the Supreme Court held that a Washington State
sentencing procedure was unconstitutional because it permitted the
imposition of a sentence above the standard range if the judge
found substantial and compelling reasons existed. Id. at 2435-40.
The Blakely court noted that it had previously held in Apprendi
that “‘[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’” Id. at 2536 (quoting Apprendi v. New Jersey, 530 U.S.
466, 490 (2000)). The Blakely court clarified that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Id. at 2537. Because the
enhanced sentence was imposed solely on the facts admitted in the
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Nonetheless, despite the Supreme Court’s holding in Booker,
Padilla’s claim does not fall under the savings clause of § 2255.
Prior to the Supreme Court’s holdings in Blakely and Booker,
we addressed a case very similar to the one at hand in Wesson v.
U.S. Penitentiary Beaumont, TX, 305 F.3d 343 (5th Cir. 2002).
There, Wesson based his savings clause argument on the Supreme
Court’s holding in Apprendi, which was the precursor to the Court’s
decisions in Blakely and Booker. In deciding Wesson’s case, we
held that Wesson’s § 2241 petition raising a claim under Apprendi
did not fall under the savings clause of § 2255 in. Wesson’s claim
did not fulfill the first prong of the Reyes-Requena test because
his § 2241 claim did not assert that he was convicted of a
nonexistent offense as required. The savings clause of § 2255 did
not apply because “Apprendi has no effect on whether the facts of
his case would support his conviction for the substantive offense.”
Id. at 348.
Likewise, Padilla’s claim challenging the enhancement of his
sentence for possession of a weapon fails to satisfy the first
guilty plea, the Blakely court held that the defendant’s sentence
violated the Sixth Amendment. Id. at 2537-38.
Recently, in United States v. Booker, the Supreme Court
extended Blakely’s holding extended to the federal sentencing
guidelines. 125 S.Ct. 738, 755-56 (2005). In Booker, the Court
held that it was a violation of a defendant’s Sixth Amendment right
to trial by jury for the federal sentencing guidelines to impose
mandatory sentence enhancements based solely on facts not found by
a jury or admitted by the defendant. The Supreme Court resolved
this problem by ruling that sentencing judges are not bound by the
federal sentencing guidelines. 125 S.Ct. at 764.
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prong of the Reyes-Requena test. Like Apprendi, Booker’s holding
is not retroactively applicable to cases on collateral review.
Booker, 125 S.Ct. at 738; Wesson 305 F.3d at 347. Moreover,
Padilla’s claim, like the Apprendi claim at issue in Wesson, does
not demonstrate that Padilla was convicted of a nonexistent offense
and has no effect on whether the facts of his case would support
his conviction for the substantive offense. See Wesson, 305 F.3d
at 347-48. Thus, because Padilla does not attack his conviction
and his claims challenge only the validity of his sentence,
Padilla’s § 2241 petition does not fall within the savings clause
of § 2255 and the district court properly dismissed Padilla’s §
2241 petition.
AFFIRMED.
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