United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
has filed a petition for writ of habeas corpus under 28
U.S.C. § 2241. (Doc. 1). Respondent moves to dismiss the
petition for lack of jurisdiction. (Doc. 12). Petitioner
opposes the motion. (Doc. 14). The matter is referred to the
undersigned magistrate judge for report and recommendation
pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R.
72.2(B). After consideration, the undersigned concludes that
the petition should be dismissed for lack of jurisdiction.
AND PROCEDURAL HISTORY
is a federal inmate confined at the Federal Correctional
Institution in Tallahassee, Florida. Petitioner is serving a
sentence imposed by the United States District Court for the
District of Puerto Rico in United States v.
Rivera-Cintron, Case Number 3:11cr572-CCC-2. (Doc. 1, p.
2). In No. 3:11cr572-CCC-2, petitioner was convicted,
pursuant to her guilty plea, of carjacking resulting in
death, and aiding and abetting, in violation of 18 U.S.C.
§ 2119(3) and 2. (Doc. 1, p. 2; see also No.
3:11cr572-CCC-2, Doc. 171 (plea agreement)). Petitioner was
sentenced on July 17, 2015, to 180 months in prison followed
by 5 years on supervised release. (See No.
3:11cr572-CCC-2, Doc. 228 (judgment)). Petitioner's
§ 2241 petition challenges her conviction and sentence
on the ground that she “is actually innocent of her
carjacking ‘resulting in death', pursuant to Mathis
decision.” (Doc. 1, p. 3 and Mem.) (referring to
Mathis v. United States, 136 S.Ct. 2243 (2016)).
Petitioner asserts, essentially, that the facts contained in
the indictment and her PSR do not provide a sufficient
factual basis for her guilty plea. (Id., Mem.).
Respondent moves to dismiss the petition for lack of
jurisdiction, because petitioner fails to satisfy the
“saving clause” of § 2255(e). (Doc. 12).
the sole issue in a § 2241 action is the execution or
carrying out of an initially valid confinement, as attacks on
the validity of a conviction or sentence must be asserted on
direct review or in a motion filed under 28 U.S.C. §
2255. See United States v. Hayman, 342 U.S.
205 (1952); McCarthan v. Dir. Of Goodwill Indus.
- Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir.)
(“Since 1948, Congress has required that a federal
prisoner file a motion to vacate, 28 U.S.C. § 2255,
instead of a petition for a writ of habeas corpus,
id. § 2241, to collaterally attack the legality
of his sentence.”), cert. denied, 138 S.Ct.
502 (2017); Broussard v. Lippman, 643 F.2d 1131 (5th
Cir. Unit A Apr. 27, 1981) (“Attacks on the underlying
validity of a conviction must be brought under 28 U.S.C.
§ 2255, not 28 U.S.C. § 2241(c).”); see
also 28 U.S.C. § 2255(a).
2255(e) bars a § 2241 petition if the prisoner failed to
seek, or was already denied relief on, a § 2255 motion,
“unless it also appears that the remedy by [§
2255] motion is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e);
see also Antonelli v. Warden, U.S.P. Atlanta, 542
F.3d 1348, 1352 n.1 (11th Cir. 2008) (“[A] § 2255
motion is the exclusive remedy for a federal prisoner to
collaterally attack his conviction and sentence, except in
the rare cases where it is inadequate to do so.”). The
narrow exception to the § 2255(e) bar is called the
“saving clause.” McCarthan, 851 F.3d at
1081-82. “The applicability of the savings clause is a
threshold jurisdictional issue. . . .” Williams v.
Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337
(11th Cir. 2013); see also Bryant v. Warden, FCC
Coleman-Medium, 738 F.3d 1253, 1262-63 (11th Cir. 2013)
(“Section 2255(e)'s language - ‘shall not be
entertained' - speaks ‘in imperative terms
regarding a district court's power to entertain a [§
2241] claim, ' and ‘in enacting § 2255(e),
Congress clearly restricted the subject-matter jurisdiction
of the federal courts' over § 2241 petitions.”
(alteration in original) (citing Williams, 713 F.3d
at 1340)). “The burden of demonstrating the inadequacy
or ineffectiveness of the § 2255 remedy rests squarely
on the petitioner.” Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328, 1333 (11th Cir. 2013)
(citing McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
claim attacks the legality of her conviction and sentence.
Petitioner did not appeal her conviction or sentence, nor did
she file a motion under 28 U.S.C. § 2255. (Doc. 1, p.
2). Instead, petitioner now attempts to seek relief under the
“saving clause” of § 2255(e), after having
allowed her one-year limitations period to file a § 2255
motion to expire. Petitioner asserts that the remedy under
§ 2255 is inadequate or ineffective because “the
Supreme Court has only recently decided the Mathis case,
which was unavailable to Rivera-Cintron, prior to the Supreme
Court decision.” (Doc. 1, p. 3; see also Mem.,
p. 2 (arguing that she satisfies the requirements of the
saving clause and is entitled to bring her claims under
§ 2241, because “she is actually innocent of the
enhancement which she received ‘resulting in
death', that provided for a 240 months sentence, the
petitioner also believes that she entered into a plea
agreement under 11(c)(1)(B), under involuntary
McCarthan, the Eleventh Circuit, overruling prior
circuit precedent, established a new test for determining
when a prisoner can proceed under § 2241.Id. at
1082. The court held: “A motion to vacate is inadequate
or ineffective to test the legality of a prisoner's
detention only when it cannot remedy a particular kind of
claim.” McCarthan at 1099; see also
id. at 1089 (“When a prisoner's motion attacks
his sentence based on a cognizable claim that can be brought
in the correct venue, the remedy by motion is adequate and
effective to test his claim.”). The Eleventh Circuit
recently summarized the new McCarthan test as
[W]e determined [in McCarthan] that the only
relevant consideration is whether the prisoner would have
been permitted to bring that type of claim in a § 2255
motion. If so, the § 2255 remedy is adequate and
effective, even if the specific claim would have been
foreclosed by circuit precedent or otherwise subject to some
procedural bar or time limitation. A § 2255 motion is
inadequate or ineffective to test the legality of a
prisoner's detention under the saving clause only in
limited circumstances. Those circumstances include: (1) when
raising claims challenging the execution of the sentence,
such as the deprivation of good-time credits or parole
determinations; (2) when the sentencing court is unavailable,
such as when the sentencing court itself has been dissolved;
or (3) when practical considerations, such as multiple
sentencing courts, might prevent a petitioner from filing a
motion to vacate.
Bernard v. FCC Coleman Warden, 686 Fed.Appx. 730,
730 (11th Cir. 2017) (citing McCarthan at
1085-1088), cert. denied, No. 17-5686, 2018 WL
1037602 (U.S. Feb. 26, 2018).
does not satisfy the McCarthan test for proceeding
under the saving clause. Petitioner's challenge to her
guilty plea could have been brought in a § 2255 motion,
regardless of the Mathis decision. “[A] change
in caselaw does not make a motion to vacate a prisoner's
sentence inadequate or ineffective to test the legality of
[her] detention.” McCarthan, 851 F.3d at 1080;
see also Id. at 1099 (“Even if a
prisoner's claim fails under circuit precedent, a motion
to vacate remains an adequate and effective remedy for a
prisoner to raise the claim and attempt to persuade the court
to change its precedent, and failing that, to seek certiorari
in the Supreme Court.”). Petitioner's failure to
satisfy the saving clause requires dismissal of this case.
it is respectfully RECOMMENDED:
respondent's motion to ...