United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE.
case is before the court on Petitioner Robert Lee
Gibson's (“Gibson”) habeas petition and
supporting memorandum, filed pursuant to 28 U.S.C. §
2241 (ECF No. 1). Respondent filed a motion to dismiss the
petition for lack of jurisdiction (ECF No. 10). Gibson filed
a response in opposition to the motion (ECF No. 12).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)
and Fed.R.Civ.P. 72(b). After careful consideration of all
issues raised by the parties, it is the opinion of the
undersigned that the habeas petition should be dismissed for
lack of jurisdiction.
BACKGROUND AND PROCEDURAL HISTORY
3, 1990, a federal grand jury in the United States District
Court for the Southern District of Florida returned an
indictment charging Gibson and two co-defendants with
conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count 1), and use of a
firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c) (Count 2)
(see ECF No. 10 at 1). See aslo United States v.
Gibson, Case No. 0:90-cr-6108-WJZ-1, Copy of Paper
Docket Sheet, ECF No. 225 at 1 (S.D. Fla. July 9, 1998). The
indictment also charged Gibson with receipt of ammunition by
a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) (Count 3) (see ECF No. 10 at
1-2). See id., Copy of Paper Docket Sheet, ECF No.
225 at 1 (S.D. Fla. July 9, 1998). Following a jury trial in
June of 1991, Gibson was found guilty as charged
(see ECF No. 1 at 6; ECF No. 10 at 2). See
id., Copy of Paper Docket Sheet, ECF No. 225 at 6 (S.D.
Fla. July 9, 1998). On August 30, 1991, the district court
sentenced Gibson to a mandatory term of life imprisonment on
Count 1, a term of 120 months in prison on Count 3 (to run
concurrently with the sentence on Count 1), and a term of 5
years in prison on Count 2 (to run consecutively to the
sentences imposed on Counts 1 and 3) (see ECF No. 1
at 6; ECF No. 10 at 2). See id., Copy of Paper
Docket Sheet, ECF No. 225 at 7 (S.D. Fla. July 9, 1998). The
Eleventh Circuit Court of Appeals affirmed the judgment
(see ECF No. 1 at 1; ECF No. 10 at 2).
about June 21, 1996, Gibson filed a motion to vacate his
conviction, pursuant to 28 U.S.C. § 2255. See
Gibson, Case No. 0:90-cr-6108-WJZ-1, Copy of Paper
Docket Sheet, ECF No. 225 at 11 (S.D. Fla. July 9, 1998);
Gibson v. United States, Case No. 0:96-cv-6667-WJZ,
Complaint, ECF No. 1 (S.D. Fla. June 21, 1996). The district
court denied the motion on October 15, 1997. See
Gibson, Case No. 0:96-cv-6667-WJZ, Order, ECF No. 3
(S.D. Fla. Oct. 15, 1997). The Eleventh Circuit affirmed the
decision on February 13, 1998. See Gibson, Case No.
0:90-cr-6108-WJZ-1, Copy of Paper Docket Sheet, ECF No. 225
at 13 (S.D. Fla. July 9, 1998).
about June 20, 2014, Gibson filed a second § 2255
motion. See Gibson, Case No. 0:90-cr-6108-WJZ-1,
Motion to Vacate under 28 U.S.C. 2255, ECF No. 336 (S.D. Fla.
June 20, 2014); Gibson v. United States, Case No.
0:14-cv-61433-WJZ, Motion to Vacate Sentence, ECF No. 1 (S.D.
Fla. June 20, 2014). The district court dismissed the motion
as successive on November 20, 2014. See Gibson v. United
States, Case No. 0:14-cv-61433-WJZ, Final Order of
Dismissal, ECF No. 6 (S.D. Fla. Nov. 20, 2014).
about July 5, 2016, Gibson filed a third § 2255 motion.
See Gibson, Case No. 0:90-cr-6108-WJZ-1, Motion to
Vacate under 28 U.S.C. 2255, ECF No. 395 (S.D. Fla. July 5,
2016); Gibson v. United States, Case No.
0:16-cv-61583-WJZ, Motion to Vacate/Set Aside/Correct
Sentence, ECF No. 1 (S.D. Fla. July 5, 2016). The district
court transferred the case to the Eleventh Circuit for
treatment as an application to file a successive § 2255
motion. See Gibson v. United States, Case No.
0:16-cv-61583-WJZ, Order, ECF No. 8 (S.D. Fla. Aug. 1, 2016).
The Eleventh Circuit denied the application on August 9,
2016. See In re Gibson, Case No. 16-15075, Order
(11th Cir. Aug. 9, 2016).
18, 2017, Gibson filed the instant § 2241 petition
raising the following claim:
one: “Actual innocence of conspiracy to dis [sic] 5
kilograms.” (ECF No. 1 at 3, 6-11). Gibson
contends he is “actually innocent” of the crime
of which he was convicted and sentenced, i.e., conspiracy to
distribute 5 kilograms of cocaine, which carried a mandatory
life sentence, because the Government failed to charge a drug
quantity in the indictment, and the issue of drug quantity
was not submitted to the jury for a finding beyond a
reasonable doubt (id.). In support of his claim,
Gibson relies upon the Supreme Court's decision in
Burrage v. United States, ___ U.S. ___, 134 S.Ct.
881, 187 L.Ed.2d (2014) (id. at 7-11).
power to issue the writ of habeas corpus was granted to the
federal courts by the Judiciary Act of 1789. See United
States v. Hayman, 342 U.S. 205, 211, 72 S.Ct. 263, 96
L.Ed. 232 (1952). The habeas remedy is now codified in §
2241, subsection (c)(3) of which provides that the writ of
habeas corpus shall not extend to a prisoner unless he is
“in custody in violation of the Constitution or laws or
treaties of the United States.” As noted in
Hayman, habeas corpus applications are required to
be brought in the district of confinement. 342 U.S. at 213.
courts which had federal prisons within their jurisdictional
boundaries became inundated with habeas petitions, and
because the materials, witnesses, and other evidence which
had a significant bearing on the determination of the
legality of a sentence were generally located in the district
where sentence was imposed rather than where the prisoner was
confined, in 1948 Congress enacted § 2255 of Title 28.
See Hayman, 342 U.S. at 212-14, 218. The language of
§ 2255 suggests, and the Eleventh Circuit has expressly
concluded, that this statute was intended to channel
challenges to the legality of the conviction and imposition
of sentence, while leaving § 2241 available to challenge
the continuation or execution of an initially valid
confinement. See Antonelli v. Warden, U.S.P.
Atlanta, 542 F.3d 1348, 1351-52 (11th Cir. 2008);
United States v. Jordan, 915 F.2d 622, 629 (11th
Cir. 1990) (§ 2255 is primary method of collateral
attack on federally imposed sentence); Broussard v.
Lippman, 643 F.2d 1131, 1134 (5th Cir. Apr. 1981)
(attacks on the underlying validity of a conviction must be
brought under 28 U.S.C. § 2255, not 28 U.S.C. §
2241).Thus, § 2241 provides an avenue for
challenges to matters such as the administration of parole,
prison disciplinary actions, prison transfers, and certain
types of detention. See Antonelli, supra
(petition challenging decision of federal Parole Commission
is properly brought pursuant to § 2241); Thomas v.
Crosby, 371 F.3d 782, 810 (11th Cir. 2004) (petition
challenging pre-trial detention is properly brought pursuant
to § 2241); Bishop v. Reno, 210 F.3d 1295, 1304
n.14 (11th Cir. 2000) (petition challenging Bureau of
Prisons's administration of service credits, including
calculating, awarding, and withholding, involves execution
rather than imposition of sentence; ...