Padilla v. United States

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

1
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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