United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION TO DISMISS § 2241
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.
about September 28, 2017, Petitioner Vivian Vann, a federal
prisoner proceeding pro se, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
On December 21, 2017, Respondent filed a motion to dismiss
the petition, with exhibits. ECF No. 8. Petitioner has filed
a reply. ECF No. 9.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration, the undersigned
concludes Petitioner has not demonstrated entitlement to
proceed under section 2241 and this petition should be
November 2011, in the United States District Court for the
Southern District of Florida, No. 1:11-cr-20479, Petitioner
Vivian Vann entered a guilty plea to three counts: (1) making
a false statement on a passport application, in violation of
18 U.S.C. § 1542; (2) aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1); and (3) social
security fraud, in violation of 42 U.S.C. §
408(a)(7)(B). ECF No. 1 at 2; see United States v.
Vann, No. 1:11cr20479-PAS (S.D. Fla.), ECF No. 33 (Plea
Agreement), ECF No. 43 (Judgment). The Government agreed to
dismiss the remaining two counts. United States v.
Vann, No. 1:11cr20479-PAS (S.D. Fla.), ECF No. 33 (Plea
Agreement), ECF No. 43 (Judgment). On April 19, 2012, the
district court adjudicated Vann guilty and sentenced her to
48 months in prison, followed by a term of 3 years on
supervised release. Id. ECF No. 43 at 2-3. Vann
appealed, id. ECF No. 44, and the Eleventh Circuit
subsequently granted her voluntary motion to dismiss the
appeal with prejudice, id. ECF No. 53.
hearing on December 3, 2015, the district court revoked
Vann's supervised release and, in a judgment entered
December 7, 2015, sentenced her to 21 months in prison with
no supervised release to follow. Id. ECF No. 70.
Vann did not appeal.
20, 2017, Vann filed a “Motion to Reopen and
Reconsider.” Id. ECF No. 75 (also attached as
Ex. 2 to Respondents' Motion to Dismiss). In this motion,
Vann asked the sentencing court to vacate the remainder of
her sentence as “[t]here was no evidence that would
constitute a violation of [her] probation.”
Id. By order on July 13, 2017, the court denied the
motion. Id. ECF No. 77 (also attached as Ex. 3 to
Respondents' Motion to Dismiss). The court also explained
that it “may only reconsider a sentence through a
motion filed under 28 U.S.C. § 2255” and if Vann
wishes, the court may recharacterize her motion as one filed
pursuant to § 2255; however, the court warned that, if
this is done, “any subsequent § 2255 motion will
be subject to the restrictions on second or successive
motions.” Id. The court also explained that
generally “a defendant may only file one § 2255
motion and, therefore, it is essential that Vann set forth
all of the grounds she wishes to assert.” Id.
on August 7, 2017, Vann filed a § 2255 motion.
Id. ECF No. 78 (also attached as Ex. 4 to
Respondents' Motion to Dismiss). She raised three
grounds: (1) ineffective assistance of counsel for not filing
a timely notice of appeal; (2) court lacked subject matter
jurisdiction to enter the judgment; and (3) her guilty plea
was involuntary as the result of ineffective assistance of
counsel. Id. at 3-6. The magistrate judge
recommended the motion be dismissed as untimely and, in an
order entered January 10, 2018, the district judge adopted
that recommendation, dismissed the motion as time-barred,
denied a certificate of appealability, and closed the case.
Id. ECF No. 81.
meantime, as indicated above, on or about September 28, 2017,
Vann filed this petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241. ECF No. 1. She raises three
grounds: (1) trial court did not have subject matter
jurisdiction; (2) ineffective assistance of counsel for not
filing a timely notice of appeal; (3) “revocation based
on false statements”; and (4) “conviction
obtained by violation of due process of law.”
Id. at 3-5.
December 21, 2017, Respondent filed a motion to dismiss, with
exhibits. ECF No. 8. Respondent asserts this Court lacks
subject matter jurisdiction because remedy by § 2255
motion is adequate and effective to test the legality of
Vann's detention. Id. at 4-5, 8. Respondent
points out that Vann's claims are cognizable under §
2255, she did bring some of these claims in her § 2255
motion, and she cannot use the saving clause to raise the
claims in this court. Id. at 7.
Vann has filed a reply. ECF No. 9. Petitioner asserts her
counsel never explained to her she had only one year to file
a § 2255 motion. Id. She further asserts her
“supervised release was revocated because of an
apparent ‘new conviction'; however [she] was never
convicted of any new crime and therefore the revocation was
without merit and needs to be addressed.” Id.
Judiciary Act of 1789 granted federal courts the power to
issue the writ of habeas corpus. See United States v.
Hayman, 342 U.S. 205 (1952). The habeas remedy is now
codified in 28 U.S.C. § 2241, subsection (c)(3) of which
provides that the writ of habeas corpus shall not extend to a
prisoner unless the prisoner is “in custody in
violation of the Constitution or laws or treaties of the
United States.” As noted in Hayman, prisoners
must bring habeas corpus applications in the district of
confinement. 342 U.S. at 213. Because courts with federal
prisons in 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 section 2255 of Title 28. See id. at 212-14,
language of section 2255 suggests, and the Eleventh Circuit
has expressly concluded, that this statute channels
challenges to the legality of the imposition of a sentence,
while leaving section 2241 available to challenge the
continuation or execution of an initially valid confinement.
See McCarthan v. Dir. of Goodwill Indus.-Suncoast,
Inc., 851 F.3d 1076, 1081 (11th Cir. 2017);
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) (explaining § 2255 is
primary method of collateral attack on federally imposed
sentence). Thus, section 2241 provides an avenue for
challenges to matters such as the administration of sentences
or parole, prison disciplinary actions, prison transfers, and
certain types of detention. See Antonelli, 542 F.3d
at 1352 (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 § ...