United States District Court, M.D. Florida, Ocala Division
ORDER DISMISSING CASE
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
Charlie Vernon, an inmate of the Federal penal system,
initiated this action on September 17, 2019,  by filing a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 (Petition; Doc. 1). The Petition is before the Court for
preliminary review pursuant to the Rules Governing Section
2254 Cases in the United States District Courts (also
applicable to petitions brought under 28 U.S.C. § 2241).
Rule 4 requires the Court to “promptly examine” a
petition, and “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition.” For the reasons discussed below,
the Petition is due to be dismissed because the Court lacks
subject matter jurisdiction.
is a federal inmate currently incarcerated at Coleman Low
Federal Correctional Institution within this district and
division. In 2013, a jury in the Middle District of Florida -
Tampa Division - found Vernon guilty of possession of
twenty-eight grams or more of crack cocaine with the intent
to distribute (count one) and possession of a firearm by a
convicted felon (count three). (Criminal Docket 81)
United States v. Charlie Vernon, Jr.,
8:13-cr-115-T-30MAP (M.D. Fla.). The district court sentenced
Vernon to a term of incarceration of 280 months in prison as
to each count, with the sentences ordered to run
concurrently. (C.R. Doc. 100). Vernon appealed, and the
Eleventh Circuit Court of Appeal granted the government's
motion for summary affirmance and dismissed the appeal. (C.R.
March 24, 2016, Vernon filed a motion to vacate sentence
pursuant to 28 U.S.C. § 2255, alleging that: (1)
appellate counsel was ineffective for failing to respond to
the government's motion for summary affirmance; (2) the
government failed to prove that his prior convictions
occurred on separate occasions; (3) the district court
provided a coercive jury instruction and counsel failed to
object to it; (4) his trial was fundamentally unfair where
the district court did not suspend the trial due to
Vernon's severe diabetes; and (5) the poor quality of his
imprisonment as a diabetic violates the Eighth Amendment.
(C.R. Doc. 134). The district court denied the § 2255
petition on the merits on November 18, 2016. (C.R. Doc. 137).
2019, Vernon filed the instant Petition, arguing that he is
actually innocent because the district court read an
incorrect jury instruction during his criminal trial.
Petition at 3-9. Specifically, he asserts that the
instruction read for count three did not include a provision
instructing the jury that the government must prove that he
knew he possessed a firearm and that he knew he was a
convicted felon. Id. at 5. According to Vernon, he
is actually innocent because “[t]he evidence including
the jury instruction in this case was insufficient to convict
Mr. Vernon's [sic] of violating §922(g) and
§924(a)(2).” Id. Additionally, he argues
that he “is actually innocent of an ACCA violation,
because he does not actually have the qualifying separate
convictions for purposes of ACCA.” Id. at 6.
collateral attacks on the validity of a federal conviction or
sentence must be brought under 28 U.S.C. § 2255.
Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.
2003). Challenges to the execution of a sentence, rather than
the validity of the sentence itself, are properly brought
under 28 U.S.C. § 2241. Antonelli v. Warden, U.S.P.
Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). The
claims raised in the instant Petition do not address the
execution of Vernon's sentence, but its legality, as he
contends that his convictions and sentences resulted from an
improper jury instruction. Therefore, § 2255, not §
2241, is the appropriate statutory vehicle for Vernon's
claims. Because Vernon has already filed and prosecuted a
§ 2255 motion attacking his convictions, which was
denied on the merits, before pursuing the instant § 2255
motion to vacate, he must obtain authorization from the
United States Court of Appeals for the Eleventh Circuit to
file a second or successive motion. See 28 U.S.C.
§ 2244(b)(3)(A). Vernon did not do this, and the Court
cannot review his claims under § 2255 without such
authorization. See, e.g., Benitez v. Warden, FCI
Miami, 564 Fed.Appx. 497, 499 (11th Cir. 2014)
(affirming dismissal of § 2241 petition alleging an
illegal indictment, improper jury instructions, and
prosecutorial misconduct). To the extent Vernon relies on
McQuiggin v. Perkins, 569 U.S. 383 (2013) for the
proposition that he must file claims of actual innocence via
§ 2241, McQuiggin does not support this legal
argument. The United States Supreme Court in
McQuiggin held only that a claim of actual innocence
can overcome the one-year statute of limitations for a state
prisoner's initial petition for writ of habeas corpus.
Id. at 1928. As such, McQuiggin does not
entitle Vernon to challenge his conviction and sentences
through a § 2241 petition.
the Petition under § 2255(e), the “savings clause,
” which permits a federal prisoner to file a petition
pursuant to § 2241 if a § 2255 motion “is
inadequate or ineffective to test the legality of his
detention, ” the Court finds that it is without
jurisdiction to review the merits of his claims. 28 U.S.C.
§ 2255(e). The savings clause imposes a subject matter
jurisdictional limit on petitions filed pursuant to §
2241. Williams v. Warden, 713 F.3d 1332, 1338 (11th
Cir. 2013). In explaining the meaning of the phrase
“inadequate or ineffective, ” the Eleventh
Circuit has explained that a motion under § 2255
“is inadequate or ineffective to test the legality of a
prisoner's detention only when it cannot remedy a
particular kind of claim.” McCarthan v. Dir. Of
Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1099
(11th Cir. 2017). Here, Vernon's claim concerning the
jury instruction and his prior convictions were capable of
adjudication in his § 2255 proceedings. See
Benitez, 564 Fed.Appx. at 499. Therefore, the savings
clause does not apply. See McCarthan, 851 F.3d at
1099. Accordingly, the Petition is due to be dismissed for
lack of jurisdiction.
1. Vernon's Petition (Doc. 1) is DISMISSED for
lack of jurisdiction and this case is
DISMISSED with prejudice.
2. The Clerk shall enter judgment dismissing
this case with prejudice, close this case, and terminate any