Jeffers v. Chandler

REVISED - June 25, 2001

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-41461

GARLAND JEFFERS,

Petitioner-Appellant,

ERNEST CHANDLER, Warden, U.S. Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Texas, Beaumont

June 8, 2001

(Opinion November 27, 2000, 5th Cir. 2000, ____F.3d ____)

Before DUHÉ and PARKER, Circuit Judges, and LINDSAY1, District
Judge.

PER CURIAM:

The petition for rehearing en banc is DENIED and the petition

for panel rehearing is GRANTED. The panel’s opinion filed November

27, 2000, published at 234 F.3d 277 (5th Cir. 2000), is withdrawn

and the following opinion is substituted therefor.

Garland Jeffers (“Jeffers”) appeals the district court’s

dismissal of his 28 U.S.C. § 2241 petition. For the following

1
District Judge of the Northern District of Texas, sitting by
designation.
reasons, we AFFIRM.

2
FACTS AND PROCEDURAL HISTORY

Jeffers was convicted of engaging in a continuing criminal

enterprise (“CCE”) in violation of 21 U.S.C. § 848. He was

sentenced to life imprisonment to be served consecutively with a

15-year sentence for a prior conviction for conspiring to

distribute heroin and cocaine. See United States v. Jeffers, 532

F.2d 1101, 1105 (7th Cir. 1976), aff’d in part and vacated in part,

432 U.S. 137, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977). The Supreme

Court affirmed Jeffers’s conviction but vacated his cumulative

fines. Id. at 157-58, 97 S. Ct. at 2220. Jeffers then filed

several unsuccessful § 2255 motions in the Seventh Circuit.

Jeffers also filed an unsuccessful § 2241 petition challenging

his CCE conviction in the Middle District of Pennsylvania. The

Third Circuit affirmed. Jeffers then filed a § 2241 petition

attacking his CCE conviction in the Eastern District of Texas where

he is incarcerated. The magistrate judge recommended that it be

construed as a § 2255 motion and denied as time-barred and as a

successive motion filed without this court’s permission. The

district court adopted the magistrate judge’s Report and

Recommendation over Jeffers’s objections and dismissed the case.

This court denied Jeffers a certificate of appealability (“COA”).

Jeffers then filed a petition for a writ of habeas corpus,

invoking § 2241, in the Eastern District of Texas. Relying on

Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L.

Ed. 2d 985 (1999), Jeffers argued that his CCE conviction resulted

3
from constitutionally deficient jury instructions. In Richardson,

the Supreme Court concluded that a jury in a CCE case must

unanimously convict the defendant on each of the specific

violations that make up the alleged continuing series of

violations. Richardson, 526 U.S. at 824, 119 S. Ct. at 1713.

Jeffers contends that the jury instructions given at his trial did

not include instructions requiring the jury to do this.

He argues that Richardson should be applied retroactively under

Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed.

2d 828 (1998).

Jeffers contends that he may raise his Richardson claim in a

§ 2241 petition because the § 2255 remedy is inadequate and

ineffective. He comes to this conclusion because he was unable to

raise this claim in his prior § 2255 motions, since the Richardson

decision was not in existence at the time. He argues, therefore,

that he had no reasonable opportunity to obtain earlier judicial

correction of the alleged defect in his conviction. He also

contends that because of the Richardson decision, he can now show

that he is actually innocent of the CCE charge because he was never

found guilty beyond a reasonable doubt on the continuing series of

drug violations element of the charge.

The district court dismissed Jeffers’s § 2241 petition,

finding that Jeffers failed to show that § 2255 relief was

inadequate or ineffective. The district court, noting that some

other circuits have held that § 2241 relief may be available to a

4
federal prisoner seeking to attack his conviction in certain

limited instances, found that this was not one of those instances.

The court found that to allow Jeffers to bring his claim in a §

2241 petition would render the restrictions regarding successive §

2255 motions meaningless and allow Jeffers to circumvent the intent

of the Antiterrorism and Effective Death Penalty Act, Pub. L. No.

104-132, 110 Stat 1214 (1996).

Jeffers filed a timely notice of appeal and a request for a

COA. The district court denied Jeffers’s request for a COA.

DISCUSSION

Because he is proceeding under § 2241, Jeffers need not obtain

a COA. See Ojo v. INS, 106 F.3d 680, 681-82 (5th Cir. 1997); see

also 28 U.S.C. § 2253. In an appeal from the denial of habeas

relief, this court reviews a district court’s findings of fact for

clear error and issues of law de novo. See Moody v. Johnson, 139

F.3d 477, 480 (5th Cir. 1998).

Section 2255 provides the primary means of collaterally

attacking a federal conviction and sentence. Tolliver v. Dobre,

211 F.3d 876, 877 (5th Cir. 2000). Relief under this section is

warranted for errors that occurred at trial or sentencing. Cox v.

Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990).

Section 2241 is correctly used to attack the manner in which

a sentence is executed. Tolliver, 211 F.3d at 877. A petition

filed under § 2241 which attacks errors that occurred at trial or

5
sentencing is properly construed as a § 2255 motion. Id. at 877-

78.

Nevertheless, a § 2241 petition which attacks custody

resulting from a federally imposed sentence may be entertained when

the petitioner can satisfy the requirements of the so-called

“savings clause” in § 2255. See id. at 878; McGhee v. Hanberry,

604 F.2d 9, 10 (5th Cir. 1979). That clause states:

An application for a writ of habeas corpus in 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 that the remedy by motion is inadequate or
ineffective to test the legality of his detention.

28 U.S.C. § 2255 (emphasis added). A § 2241 petition is not,

however, a substitute for a motion under § 2255, and the burden of

coming forward with evidence to show the inadequacy or

ineffectiveness of a motion under § 2255 rests squarely on the

petitioner. McGhee, 604 F.2d at 10. A prior unsuccessful § 2255

motion, or the inability to meet the AEDPA’s second or successive

requirement, does not make § 2255 inadequate or ineffective.

Tolliver, 211 F.3d at 878.

A panel of this court recently set forth the factors that must

be satisfied for a petitioner to file a § 2241 petition in

connection with § 2255’s savings clause. See Reyes-Requena v.

United States, 243 F.3d 893 (5th Cir. 2001). First, the

petitioner’s claim must be “based on a retroactively applicable

6
Supreme Court decision which establishes that the petitioner may

have been convicted of a nonexistent offense.” Id. at 904.

Second, the claim must have been “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.

We have also recently held that the Supreme Court’s decision

in Richardson is “generally retroactively applicable on collateral

review.” United States v. Lopez, No. 99-31282, 2001 WL 388092, at

*3 (5th Cir. Apr. 16, 2001).2

Nevertheless, we hold that Jeffers has failed to satisfy the

first prong of Reyes-Requena’s savings clause test. That factor

requires that a retroactively applicable Supreme Court decision

establish that the petitioner is “actually innocent.” See Reyes-

Requena, 243 F.3d at 903-04. In explaining this requirement, we

stated that “the core idea is that the petitioner may have been

imprisoned for conduct that was not prohibited by law.” Id. at

903.

The petitioner in Reyes-Requena challenged his conviction in

light of the Supreme Court’s decision in Bailey v. United States,

516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). In that

case, the Court held that the term “use” in 18 U.SC. § 941(c)(1),

2
The court in Lopez held that the bar to the retroactive
application of “new constitutional rules of criminal procedure”
under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d
334 (1989) was inapplicable, “because Richardson consisted of the
Supreme Court’s interpretation of a statute.” Lopez, 2001 WL
388092, at *3.

7
the section under which Reyes-Requena had been charged, required

“an active employment of the firearm by the defendant.” Bailey,

516 U.S. at 143, 116 S. Ct. at 505. Reyes-Requena alleged that the

facts of his case would not support his conviction under §941(c)(1)

as interpreted by the Court in Bailey. Therefore, we concluded

that “[b]ecause his claim is that he has been imprisoned for non-

criminal conduct, as acknowledged by Bailey, he meets the actual

innocence prong of our savings clause test.” Reyes-Requena, 243

F.3d at 904.

Jeffers’s claims are distinguishable from those at issue in

Reyes-Requena. Jeffers argues that he can prove he is “actually

innocent” under Richardson because the jurors were never instructed

that they had to unanimously convict him on each of the specific

violations that made up the alleged continuing series of

violations, and therefore he was never found guilty beyond a

reasonable doubt on an essential element of the § 848 charge. But

this does not amount to a claim that Jeffers was convicted of “a

nonexistent offense” as required by Reyes-Requena’s actual

innocence prong. “Actual innocence” for the purposes of our

savings clause test could only be shown if Jeffers could prove that

based on a retroactively applicable Supreme Court decision, he was

convicted for conduct that did not constitute a crime.

Richardson, however, has no effect on whether the facts in

Jeffers’s case would support his conviction for a substantive

offense.

8
In sum, although the lack of an instruction requiring a

unanimous jury verdict as to each of the predicate offenses

underlying the CCE violation may have been a defect in Jeffers’s

trial, it is not the sort of defect that can support a claim under

the savings clause of § 2255. Accordingly, the district court’s

denial of Jeffers’s § 2241 petition was not error.

AFFIRMED.