Kinder v. Purdy ( 2000 )

REVISED - September 14, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41459
_____________________
DAVID KINDER
Petitioner - Appellant
v.
MICHAEL A PURDY
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 9, 2000
Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER,
Circuit Judges.
PER CURIAM:
Petitioner-Appellant David Kinder appeals from the lower
court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of
habeas corpus. Because we determine that the dismissal was
proper, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is the fourth time that Petitioner-Appellant David
Kinder is before us. We have recounted the facts pertinent to
his conviction in published opinions from his direct appeal, see
United States v. Kinder, 946 F.2d 362, 365 (5th Cir. 1991), cert.
denied, 503 U.S. 987 (1992); United States v. Kinder, 980 F.2d
961, 962 (5th Cir. 1992), cert. denied, 508 U.S. 923 (1993), and
so do not repeat ourselves here. In brief, in 1990, Kinder was
convicted, pursuant to a guilty plea, of conspiracy to possess
more than 100 grams of methamphetamine with intent to distribute.
He was sentenced as a career offender under U.S.S.G. § 4B1.1 and
given a term of 400 months in prison.
After Kinder’s conviction and sentence became final, we
determined that in defining § 4B1.1’s “controlled substance
offenses” to include drug conspiracies, the Sentencing Commission
had exceeded its authority as its definition was broader than the
definition provided in 28 U.S.C. § 994(h), the provision under
which the Commission had claimed authority for its action. See
United States v. Bellazerius, 24 F.3d 698, 700-02 (5th Cir.
1994). We noted that the Commission could have exercised its
authority under § 994(a)-(f) and defined “controlled substance
offenses” to include conspiracies, but that it had not, in fact,
done so. See id. at 701-02. Because Kinder had been convicted
of conspiracy and had had the Sentencing Guidelines’ career
offender provisions applied, he filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and
argued that under Bellazerius, his drug conspiracy conviction
could not support application of § 4B1.1. The district court
2
denied relief, and we subsequently affirmed that decision in an
unpublished opinion. See United States v. Kinder, No. 95-50139,
at 1-6 (5th Cir. Oct. 12, 1995). We held that Kinder’s
Bellazerius claim, which challenged the trial court’s technical
misapplication of the Sentencing Guidelines, was not cognizable
in a § 2255 motion. See id. at 2-3.
On January 12, 1999, Kinder filed a motion pursuant to 28
U.S.C. § 2241 in the United States District Court for the
Southern District of Texas, Corpus Christi Division. Judge H.W.
Head, Jr. construed Kinder’s motion as a challenge to the
imposition and terms of his sentence, and as a result,
transferred the case to the sentencing court, the United States
District Court for the Western District of Texas, Waco Division.
Determining that Kinder’s claim was identical to his prior § 2255
motion, Judge Walter S. Smith, Jr. dismissed the motion on July
30, 1999.
Kinder’s second § 2241 petition, again filed in the United
States District Court for the Southern District of Texas, Corpus
Christi Division, fared no better below. Judge Head, considering
Kinder’s argument that his Bellazerius claim is cognizable under
§ 2241 because the remedy under § 2255 is inadequate or
ineffective, determined that Kinder had failed to demonstrate
that 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.’”
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Order of Dismissal, R. at 5 (quoting In re Davenport, 147 F.3d
605, 610 (7th Cir. 1998)). As a result, Judge Head perceived the
petition as an attempt to circumvent the rule against successive
§ 2255 motions, and on November 23, 1999, dismissed it. Kinder
timely appeals.
II. DISCUSSION
At the heart of Kinder’s challenge is his claim that because
his sentence was determined through the Sentencing Guideline’s
application of career offender provisions to those convicted only
of conspiracy, and because such an application was subsequently
declared to lie outside the Sentencing Commission’s claimed
authority, see Bellazerius, 24 F.3d at 700-02, he is now
incarcerated and detained illegally. Kinder argues that the
court below erred in dismissing his § 2241 petition because, as
he is challenging the legality of his detention, his petition was
properly brought pursuant to that provision. Connected to this
argument is Kinder’s contention that application of the amended
Sentencing Guidelines would violate the Ex Post Facto Clause.1
1
As we described in United States v. Lightbourn, 115 F.3d
291 (5th Cir. 1997), after our decision in Bellazerius, the
Sentencing Commission amended the Background Commentary to
§ 4B1.1 to alter the source of authority from strict reliance on
28 U.S.C. § 994(h) to reliance on the “general guideline
promulgation authority within 28 U.S.C. § 994(a)-(f).” 115 F.3d
at 292-93. This change, which became effective on November 1,
1995, eliminated the concerns we expressed in Bellazerius. See
Lightbourn, 115 F.3d at 293. As a result of the amendment,
“[t]he Sentencing Commission has now lawfully included drug
4
Alternatively, Kinder argues that dismissal was improper because
he is entitled to § 2241 relief as § 2255 offers an inadequate
and ineffective remedy. We review a district court’s dismissal
of a § 2241 petition on the pleadings de novo. See Venegas v.
Henman, 126 F.3d 760, 761 (5th Cir. 1997).
As we recently noted, “[a] section 2241 petition on behalf
of a sentenced prisoner attacks the manner in which a sentence is
carried out or the prison authorities’ determination of its
duration, and must be filed in the same district where the
prisoner is incarcerated.” Pack v. Yusuff, — F.3d —, 2000 WL
942919, at *2 (5th Cir. July 10, 2000). Although he
characterizes his claim as a challenge to the legality of his
detention, Kinder actually attacks the manner in which his
sentence was determined. Underlying his argument is the notion
that his detention would not be “illegal” had his sentence been
determined in accordance with Bellazerius, i.e., career offender
provisions had not been applied. Because Kinder challenges the
manner in which his sentence was initially determined, he must
seek post-conviction relief under § 2255. See Pack, 2000 WL
942919, at *2 (“Relief under section 2255 is warranted for errors
cognizable on collateral review that occurred ‘at or prior to
conspiracies in the category of crimes triggering classification
as a career offender under § 4B1.1 of the Sentencing Guidelines.”
Id. Because we do not attempt to apply these amendments to
Kinder, we do not address his argument that such an application
would violate the Ex Post Facto Clause.
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sentencing’.” (quoting Cox v. Warden, Fed. Detention Ctr., 911
F.2d 1111, 1113 (5th Cir. 1990))). Such motions must be filed in
the sentencing court. See id.
“A section 2241 petition that seeks to challenge the
validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.” Pack, 2000 WL 942919, at
*2. Because Kinder did not file his motion in the sentencing
court, construing his § 2241 motion as a § 2255 motion will not
alter the end result — dismissal — unless Kinder can demonstrate
that his case falls within § 2255’s “savings clause,” i.e., that
“the remedy by [§ 2255] motion is inadequate or ineffective to
test the legality of his detention.” 28 U.S.C. § 2255; see Pack,
2000 WL 942919, at *3; McGhee v. Hanberry, 604 F.2d 9, 10 (5th
Cir. 1979).
Kinder presents three arguments for why § 2255 relief is
inadequate or ineffective. First, he contends that he is
actually innocent of being a § 4B1.1 career offender. Second, he
asserts, correctly, that he cannot present his claim under
Bellazerius because we have held that Kinder and other
individuals who were sentenced prior to our decision in that case
can not use that decision to vacate their sentences through a
§ 2255 motion. See United States v. Williamson, 183 F.3d 458,
462 (5th Cir. 1999); Kinder, No. 95-50139, at 2-3. Finally, he
states that he cannot satisfy the requirements of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
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Pub. L. No. 104-132, 110 Stat. 1214, because any § 2255 motion
now filed would be considered a successive petition.
As we have previously noted, “a prior unsuccessful § 2255
motion is insufficient, in and of itself, to show the inadequacy
or ineffectiveness of the remedy.” McGhee, 604 F.2d at 10. The
fact that any of Kinder’s subsequently filed § 2255 motions
likely will be considered successive petitions and barred under
AEDPA is also insufficient to render § 2255 an inadequate or
ineffective remedy. See Pack, 2000 WL 942919, at *3. “A ruling
that the section 2255 remedy was inadequate or ineffective, such
that a petitioner could invoke section 2241, simply because the
petitioner’s prior section 2255 motion was unsuccessful, or
barred, or because he could not file another motion, would render
[§ 2255’s and § 2244’s] procedural requirements a nullity and
defy Congress’s clear attempt to limit successive habeas
petitions.” Id. This leaves Kinder’s “actual innocence”
argument.
Habeas corpus relief is extraordinary and “is reserved for
transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal and
would, if condoned, result in a complete miscarriage of justice.”
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Because we issued our opinion in Bellazerius subsequent to
affirmance on appeal of Kinder’s conviction and sentence, he
could not have raised the issue on direct appeal. He argues that
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condoning the injury — the improper enhancement of his sentence —
would result in a “complete miscarriage of justice” because he is
actually innocent of being a career offender in light of
Bellazerius.
Claims of actual innocence have been recognized by some
courts as being possible bases for review under § 2241 when
§ 2255’s restrictions foreclose subsequent petitions. See, e.g.,
Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999);
Triestman v. United States, 124 F.3d 361, 377-80 (2d Cir. 1997);
see generally Wofford v. Scott, 177 F.3d 1236, 1242-44 (11th Cir.
1999) (describing various courts’ approaches to the question of
when a case may fall under § 2255’s savings clause). Kinder’s
argument that he is actually innocent of being a career offender
in light of Bellazerius, however, is not the type of argument
that courts have recognized may warrant review under § 2241.
Recent cases examining the scope of § 2255’s savings clause have
done so because of the Supreme Court’s decision in Bailey v.
United States, 516 U.S. 137 (1995). See In re Davenport, 147
F.3d 605 (7th Cir. 1998); Triestman, 124 F.3d 361; In re
Dorsainvil, 119 F.3d 245 (3d Cir. 1997); In re Vial, 115 F.3d
1192 (4th Cir. 1997) (en banc). Where the petitioner’s case has
been viewed as falling within the savings clause, it was in part
because the petitioner arguably was convicted for a nonexistent
8
offense.2 See Davenport, 147 F.3d at 611; Dorsainvil, 119 F.3d
at 251; Triestman, 124 F.3d at 363. Thus, in each case, the
petitioner could claim he was actually innocent of the crime of
which he was convicted. In contrast, Kinder argues that, under
Bellazerius, his conviction of conspiracy cannot support
application of the Guidelines’ career offender provisions.3 He
makes no assertion that he is innocent of the crime for which he
was convicted.
As we noted above, Kinder raised a claim under Bellazerius
in his first § 2255 motion. We rejected Kinder’s claim, holding
that it was not cognizable under § 2255. See Kinder, No. 95-
50139, at 2-3. Relying on § 2255’s savings clause, he now seeks
a determination that he is entitled to have the merits of his
claim reviewed under § 2241.
We note that the scope of the § 2255 remedy is no different
from the scope of the § 2241 remedy. See Wofford, 177 F.3d at
1239 (“There was no intent to make the § 2255 remedy any
different in scope from the habeas remedy that had previously
2
Bailey, a retroactively applicable Supreme Court
decision, interpreted 18 U.S.C. § 924(c)(1) narrowly, with the
result that those convicted of violating § 924(c)(1) in circuits
employing a broader interpretation of the statute could arguably
be said to have been convicted for a nonexistent offense. See
Davenport, 147 F.3d at 611.
3
In our opinion affirming the district court’s dismissal
of Kinder’s § 2255 motion, we noted that Kinder “has a history of
criminal behavior including six prior convictions for various
offenses.” See Kinder, No. 95-50139, at 1 n.1.
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been available to [federal prisoners]: ‘On the contrary, the
sole purpose was to minimize the difficulties encountered in
habeas corpus hearings by affording the same rights in another
and more convenient forum.’” (quoting United States v. Hayman,
342 U.S. 205, 219 (1952))). In effect, Kinder attempts to use
the fact that relief under § 2255 has been denied to obtain a
decision contrary to our prior holdings, including the holding in
his case, that individuals sentenced as career offenders prior to
Bellazerius cannot use that decision to obtain habeas relief.
See Williamson, 183 F.3d at 462. Section 2241 is simply not
available to prisoners as a means of challenging a result they
previously obtained from a court considering their petition for
habeas relief.
III. CONCLUSION
Because Kinder has not demonstrated that his case falls
within § 2255’s savings clause, we affirm the district court’s
dismissal of his § 2241 petition.
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