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Vann v. United States

United States District Court, N.D. Florida, Tallahassee Division

February 8, 2018

VIVIAN VANN, Petitioner,
v.
UNITED STATES OF AMERICA, and CRAIG E. COIL, Warden, Respondents.

          REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.

         On or 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.

         The 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 dismissed.

         Background

         In 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.

         After a 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.

         On June 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.

         Thereafter, 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.

         In the 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.

         On 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.

         Petitioner 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.

         Analysis

         The 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, 218.

         The 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 ยง ...


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