United States District Court, M.D. Florida, Ocala Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
Paul Santivanez filed a “Motion to Vacate, Set Aside or
Correct Sentence Pu[r]suant to 28 USC 2241(f)(3) and Pursuant
to 28 USC 2255(e)” in the Western District of Texas,
San Antonio Division. See Doc. 1 (Petition). On July
29, 2019, the Honorable Orlando L. Garcia, Chief United
States District Judge, transferred the Petition to this
Court. See Doc. 3. Petitioner is challenging his
federal (Western District of Texas) convictions for
“arson causing death, use of a destructive device in an
arson, possession of an unregistered destructive device, and
conspiracy to commit these offenses.” Doc. 1 at 4. He
is currently confined at Coleman Federal Correctional Complex
where he is serving “the statutory maximum term of life
imprisonment on the arson causing death [conviction], and a
consecutive statutory mandatory minimum sentence of 30 years
on the use [of a destructive device conviction].”
Id. In his Petition, Petitioner appears to allege
that his 18 U.S.C. § 924(c) conviction (use of a
destructive device during arson) and sentence are no longer
constitutionally valid in light of the new rule of
constitutional law set forth in Johnson v. United
States, 135 S.Ct. 2551 (2015); Sessions v.
Dimaya, 138 S.Ct. 1204 (2018); and United States v.
Davis, 139 S.Ct. 2319 (2019). See Docs. 1 at
12-14; 2 at 1.
federal prisoner has two options when pursuing postconviction
relief. “Typically, collateral attacks on the validity
of a federal sentence must be brought under §
2255.” Turner v. Warden Coleman FCI (Medium),
709 F.3d 1328, 1333 (11th Cir. 2013) (quoting Darby v.
Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005))
(abrogated on other grounds). Challenges to the execution of
a sentence, rather than the validity of the sentence itself,
are properly brought under § 2241. Antonelli v.
Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir.
2008). “[A] prisoner collaterally attacking his
conviction or sentence may not avoid the various procedural
restrictions imposed on . . . § 2255 motions by
nominally bringing suit under § 2241.”
Id. at 1351. Here, Petitioner does not challenge the
execution of his sentence but rather its legality. Therefore,
§ 2255, not § 2241, is the appropriate statutory
vehicle for his claims. See, e.g., United States
v. Cole, 417 Fed.Appx. 922, 923 (11th Cir. 2011)
(holding that “if [the petitioner] wishes to challenge
the constitutionality of his sentence, the proper method is
in collateral attack under 28 U.S.C. § 2255”).
however, asserts § 2255's “savings
clause” applies to his Petition, making his claim
cognizable under § 2241. See Doc. 1 at 6-11.
“The saving[s] clause . . . permits a prisoner to seek
collateral review by filing a § 2241 petition only if
the remedy available through § 2255 ‘is inadequate
or ineffective to test the legality of his
detention.'” Strouse v. Warden, USP Coleman
II, __ Fed.Appx. __, 2019 WL 4391220, at *1 (11th Cir.
Sept. 13, 2019) (quoting 28 U.S.C. § 2255(e)). “To
determine whether the § 2255 remedy is inadequate or
ineffective . . . [the court] must consider whether [the
petitioner] could have brought his current claims in a §
2255 motion.” Id. (citing McCarthan v.
Dir. Of Goodwill Industries-Suncoast, Inc., 851 F.3d
1076, 1081 (11th Cir. 2017)). If the claim could have been
brought in a § 2255 motion, “the § 2255
remedy is adequate and effective - even if the claims brought
in [the § 2255] motion would have been dismissed due to
a procedural bar, time limit, or circuit precedent.”
Id. (citing McCarthan, 851 F.3d at 1087,
claims fall squarely within the realm of § 2255. See
Venta v. Warden, FCC Coleman-Low, No. 16-14986-GG, 2017
WL 4280936, * 1 (11th Cir. Aug. 3, 2017) (holding that
intervening decision in Johnson, 135 S.Ct. at 2551,
did not give district court jurisdiction to consider §
2241 petition because the remedy petitioner sought - vacatur
of his sentence - could be achieved under § 2255). While
Petitioner states that he previously filed a motion to vacate
his sentence under § 2255 and that the District Court of
the Western District of Texas denied his § 2255 motion,
see Doc. 1 at 4, he cannot proceed under the savings
clause simply because his current Petition may face a second
or successive procedural bar. See McCarthan, 851
F.3d at 1086 (holding “procedural bar might prevent
relief, but that bar does not render the motion itself an
ineffective or inadequate remedy. The prisoner may still
bring the claim”). As such, § 2255 remains
Petitioner's exclusive remedy to raise this
constitutional challenge to his sentence.
a § 2255 motion collaterally attacking the
constitutionality of a petitioner's sentence must be
filed with the district court that imposed the
petitioner's sentence. See 28 U.S.C. §
2255(a). If the petitioner seeks to file a second or
successive § 2255 motion, the petitioner must first file
an application with the appropriate court of appeals for an
order authorizing the district court to consider the second
or successive § 2255 motion. 28 U.S.C. §
2244(3)(A). Petitioner was convicted and sentenced in the
Western District of Texas, San Antonio Division. See
United States v. Jimenez, 256 F.3d 330 (5th Cir.
2001). If Petitioner wishes to proceed with this
claim, he should file an application for leave to file a
second or successive § 2255 motion in the Fifth Circuit
Court of Appeals. Accordingly, this action is due to be
dismissed for lack of jurisdiction.
case is DISMISSED without prejudice.
Clerk shall enter judgment dismissing this case without
prejudice and close the file.
 Jimenez and Santivanez were