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Wilson v. Keeton Corrections Institute

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

July 10, 2019

FREDDIE WILSON, Petitioner,
v.
KEETON CORRECTIONS INSTITUTE, Respondent.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on Freddie Wilson's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. ECF Doc. 1. The case has been 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 Wilson is not entitled to relief under § 2241 and the petition should be dismissed for lack of jurisdiction.

         I. Background

         Wilson is serving a 102-month sentence imposed by the U.S. District Court for the Middle District of Florida. See United States v. Wilson, 788 F.3d 1298, 1304 (11th Cir. 2015). He was convicted of six (6) counts of theft of government funds, five (5) counts of aggravated identity theft, one (1) count of conducting an unlawful monetary transaction and one (1) count of obstructing a criminal investigation. See Id. Wilson is currently confined in Tallahassee, Florida, at a halfway house operated by Keeton Corrections, Inc.

         In this § 2241 habeas petition, Wilson challenges his convictions and sentence on three (3) grounds. First, he argues “[t]he 50 victims enhancement and more than $400, 000 in loss is unwarranted.” ECF Doc. 1 at 3, 7-9; see also Wilson, 788 F.3d at 1308 (Wilson's “Presentence Investigation Report (PSI) included a 4-level increase to Wilson's offense level under U.S.S.G. § 2B1.1(b)(2)(B) because his offenses involved more than 50 victims. The PSI also included a 14-level increase under U.S.S.G. § 2B1.1(b)(1)(H) because the total estimated loss caused by Wilson's crimes exceeded $400, 000.”). Wilson suggests the sentencing court improperly considered uncharged conduct when calculating his sentence.

         Second, Wilson asserts there was insufficient evidence to support his convictions for aggravated identity theft. ECF Doc. 1 at 3, 10-14. He argues the Eleventh Circuit ignored Flores-Figueroa v. United States, 556 U.S. 646 (2009), by not requiring the Government to prove every element of aggravated identity theft. Id. He also alleges his appellate counsel was ineffective for failing to bring Flores-Figueroa to the Eleventh Circuit's attention. ECF Doc. 1 at 12-13.

         Lastly, Wilson claims he should have received credit against the loss calculation used at sentencing because on November 1, 2013, “Bank of America returned $89, 000 to the IRS.” ECF Doc. 1 at 4, 15-16.

         As relief, Wilson asks the Court to reverse his convictions for aggravated identity theft and theft of government funds.[1] ECF Doc. 1 at 13-14, 23. He also asks the Court to reduce his sentence to reflect what he alleges is the proper sentencing guidelines calculation. ECF Doc. 1 at 8, 15.

         II. Discussion

         Generally, the sole issue in a § 2241 action is the execution or carrying out of an initially valid confinement; 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); see also 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. “The applicability of the saving[] clause is a threshold jurisdictional issue . . . .” Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013).

         In 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.” Id. at 1099. 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, 730-31 (11th Cir. 2017) (citing McCarthan, 851 F.3d at 1085-93).

         Wilson does not satisfy the McCarthan test for proceeding under the saving clause. Wilson's challenges to the sufficiency of the evidence, the calculation of the sentencing guidelines or the performance of appellate counsel could be raised in a direct appeal or § 2255 motion to vacate. Indeed, Wilson raised these arguments in his direct appeal, Wilson, 788 F.3d at 1308-11 (“Wilson contends that the evidence at trial was insufficient to support his convictions for theft of government funds, aggravated identity theft, and obstruction of a criminal investigation.”); id. at 1317 (“Wilson argues the district court erred by including uncharged tax-refund checks in its loss calculation and considering each name as a victim on the charged and uncharged checks.”), and the § 2255 motion he filed in the Middle District of Florida, see United States v. Wilson, Case No. 8:15cv2801-SCB-TGW, ECF Doc. 47 (M.D. Fla. July 11, 2016) (“In Ground Two, Petitioner challenges this Court's calculation of the loss amount at sentencing, the application of the Sentencing ...


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