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ZUNIGA-HERNANDEZ v. GILKEY

August 10, 2001

JUAN JOSE ZUNIGA-HERNANDEZ, PETITIONER,
V.
CHARLES GILKEY, RESPONDENT.



The opinion of the court was delivered by: J. Phil Gilbert, District Judge

  MEMORANDUM AND ORDER

This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 11) of Magistrate Judge Philip M. Frazier recommending that the Court dismiss petitioner Juan Jose Zuniga Hernandez's ("Zuniga") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

I. Background

In February 1993, Zuniga was indicted in the Eastern District of Louisiana on several federal criminal charges, including knowingly using and carrying firearms in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Zuniga pled guilty to the charges, admitting that he had purchased guns from an undercover government agent in return for reducing the debt Zuniga was owed from his heroin sales. Zuniga assisted in packing the weapons in bags and loaded them into an undercover law enforcement vehicle. Zuniga appealed his conviction, arguing that receiving firearms in exchange for drugs did not amount to "use" of a firearm in relation to a drug trafficking crime. On April 5, 1994, the Court of Appeals for the Fifth Circuit affirmed the district court, citing Smith v. United States, 508 U.S. 223, 237 (1993), which held that using a firearm in a guns-for-drugs trade may violate the "use" prong of § 924(c)(1). See United States v. Zuniga-Hernandez, 18 F.3d 1254 (5th Cir. 1994).

Zuniga filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his § 924(c)(1) conviction on the same grounds raised in his direct appeal. The district court denied the motion, and Zuniga appealed. Several months later, in December 1995, the United States Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), which held that "use" of a firearm under § 924(c)(1) meant "active employment" of the firearm, not merely possession or other passive activity.*fn1 Even after Bailey, in February 1996 the Court of Appeals for the Fifth Circuit affirmed the district court's denial of Zuniga's § 2255 motion. United States v. Zuniga-Hernandez, 79 F.3d 1144 (5th Cir. 1996) (Table).

Nevertheless, Zuniga continued to believe that his § 924(c)(1) conviction was invalid. After enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which restricted second § 2255 motions, Zuniga asked the Court of Appeals for the Fifth Circuit for permission to file a successive § 2255 motion to raise his argument citing Bailey. However, because Zuniga's petition did not meet the strict requirements for filing a successive petition under the AEDPA, the Court of Appeals for the Fifth Circuit declined to allow him to do so.

Zuniga is now incarcerated within the Southern District of Illinois and asks this Court to consider his Bailey argument in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Magistrate Judge Frazier recommends that the Court dismiss Zuniga's petition on the grounds that Zuniga's claims cannot be considered in a habeas corpus proceeding under § 2241. He reasoned that Zuniga had an adequate opportunity to remedy any fundamental defects in his conviction via his § 2255 motion and that the "change in law" brought about by Bailey would not clearly render his conviction and sentencing fundamentally defective. The Report notes that any change in the law between the time of Zuniga's § 2255 motion and the pending § 2241 petition is a result of different circuits' application of Bailey and is therefore not cognizable under § 2241 under the qualifications set forth by the Court of Appeals for the Seventh Circuit. See In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998). On one hand, three courts of appeals have held that receiving guns in payment for drugs does not constitute "use" under § 924(c)(1). See United States v. Ulloa, 94 F.3d 949, 956 (5th Cir. 1996); United States v. Cannon, 88 F.3d 1495, 1509 (8th Cir. 1996); United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997). On the other hand, three other courts of appeals have held the opposite. United States v. Westmoreland, 122 F.3d 431, 435-36 (7th Cir. 1997); United States v. Warwick, 167 F.3d 965, 975 (6th Cir. 1999); United States v. Stewart, 246 F.3d 728, 731 (D.C. Cir. 2001). In closing, the Report notes that Zuniga would not prevail in his § 2241 petition even if the Court were to consider it because he pled to carrying a firearm as well as using it and admitted to facts supporting his conviction under the "carry" prong of § 924(c)(1).

II. Report and Recommendation Review Standard

After reviewing a magistrate judge's report and recommendation, a district court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed.R.Civ.P. 72(b). The court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).

Zuniga objects to the Report. He admits that there is a split in the circuits regarding whether receiving, as opposed to giving, guns in a guns-for-drugs trade constitutes "use" under § 924(c)(1), but points to internal disagreements within judicial panels to minimize the importance of the technical split. He also challenges the constitutionality of the qualifications set forth in Davenport and the knowing and voluntary nature of his plea.

III. Analysis

The Court cannot entertain Zuniga's § 2241 petition. The essential purpose of habeas corpus is "to give a prisoner a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence." In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998). However, habeas corpus relief under § 2241 is available to federal prisoners in limited circumstances. It is not available where a defendant had a reasonable opportunity to challenge the legality of his sentence in a § 2255 proceeding. Id.; 28 U.S.C. § 2255. In fact, paragraph 5 of § 2255 explicitly states:

An applicant for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief under 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.

(emphasis added). The prisoner has the burden of establishing that his remedy under § 2255 was inadequate or ineffective. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). So long as the prisoner had one "unobstructed procedural shot" at getting a sentence vacated, he cannot ...


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