United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.
the court is Thomas Burgess's petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2241, with
incorporated memorandum and exhibits. (Doc. 1). The matter is
referred to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla.
Loc. R. 72.2(B). After reviewing the petition, the
undersigned concludes it should be dismissed for lack of
AND PROCEDURAL HISTORY
is currently confined at the Federal Correctional Institution
in Marianna, Florida, serving a sentence imposed by the
United States District Court for the Southern District of
Florida in United States v. Burgess, No.
9:11cr80012. (Doc. 1, p. 1). In No. 9:11cr80012, petitioner
was convicted, pursuant to his guilty plea, of possession
with intent to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1). (Doc. 1, Mem., p.
2). On July 13, 2011, he was sentenced to 125 months'
imprisonment. (Doc. 1, p. 1). Petitioner did not appeal the
criminal judgment. Petitioner, however, later moved to vacate
the sentence under 28 U.S.C. § 2255. (Doc. 1, p. 2 and
Mem.). The motion was denied; on appeal, the Eleventh Circuit
vacated the judgment denying § 2255 relief and remanded
the case to allow the district court to consider claims it
failed to address. See Burgess v. United States, 609
Fed.Appx. 627 (11th Cir. 2015). On remand, the remaining
claims were denied. Burgess v. United States, No.
9:12cv80340-KLR, 2016 WL 1624010 (S.D. Fla. Jan. 19, 2016),
Report and Recommendation adopted, 2016 WL 1583829
(S.D. Fla. Feb. 18, 2016). Both the district court and the
Eleventh Circuit denied a certificate of appealability. In
this habeas action, petitioner again seeks to challenge the
July 2011 sentence, asserting that his criminal history
points were incorrectly calculated under the Sentencing
Guidelines because the court improperly considered a traffic
stop an “intervening arrest” under U.S.S.G.
§ 4A1.2(a)(2). (Doc. 1).
collateral attacks on the validity of a federal sentence must
be brought under [28 U.S.C.] § 2255.” Darby v.
Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005);
McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1081 (11th Cir. 2017) (“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.”).
“A motion to vacate allows a prisoner to contest his
sentence ‘upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack.'” McCarthan, 851 F.3d
at 1081 (quoting 28 U.S.C. § 2255(a)). The
“saving clause” of § 2255 permits a federal
prisoner to file a habeas petition under 28 U.S.C. §
2241 if he establishes the remedy provided under § 2255
is inadequate or ineffective to test the legality of his
detention. 28 U.S.C. § 2255(e); see also
McCarthan, 851 F.3d at 1081. Petitioner argues he
satisfies the requirements of the § 2255(e) saving
clause and is entitled to bring his claim under § 2241
because his claim relies on a retroactively applicable
Eleventh Circuit decision, namely, United States v.
Wright, 862 F.3d 1265 (11th Cir. 2017).
McCarthan, the Eleventh Circuit overruled prior
circuit precedent and established a new test for determining
when a prisoner can proceed under § 2241. 851 F.3d 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, 851 F.3d 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 new
McCarthan test has been summarized as follows:
[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, 851
F.3d at 1085-93), cert. denied, No. 17-5686, ___
S.Ct. ___, 2018 WL 1037602 (Feb. 26, 2018).
does not satisfy the McCarthan test for proceeding
under the saving clause. The claim that petitioner's
criminal history points were improperly calculated is exactly
the kind of claim a motion to vacate is designed to remedy.
See 28 U.S.C. § 2255(a) (a federal prisoner
“claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or
laws of the United States . . . may move the court which
imposed the sentence to vacate, set aside or correct the
sentence”). In fact, petitioner admits he raised this
claim in the § 2255 motion he filed; the motion asserted
counsel provided ineffective assistance by failing to object
to how the presentence investigation report calculated his
prior criminal history points and criminal history category.
(Doc. 1, Mem., pp. 3-4).
petitioner's § 2241 claim is a traditional claim
attacking his sentence that can be brought in a motion to
vacate, the remedy by motion under § 2255 is adequate
and effective to test the legality of his detention. The fact
that binding precedent did not favor his claim during his
§ 2255 proceeding does not render that remedy inadequate
or ineffective. See McCarthan, 851 F.3d at 1080
(“[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.”); 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
it is respectfully RECOMMENDED:
1. That the petition for writ of habeas corpus filed under 28
U.S.C. § 2241 (doc. 1) be DISMISSED for lack of
jurisdiction, as petitioner has not demonstrated ...