United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
about May 16, 2019, Petitioner Sidney Marts, a Florida state
prisoner proceeding pro se, filed a petition for writ of
habeas corpus in which he appeared to challenge a
disciplinary report issued “on or about January 22,
2019.” ECF No. 1 at 2. Because he did not submit the
petition on the appropriate form, this Court directed him to
do so and also pay the required $5.00 filing fee or file a
motion for leave to proceed in forma pauperis. See
ECF No. 3. Petitioner paid the filing fee, see ECF
No. 8, and ultimately filed a habeas corpus petition on a
§ 2241 form, see ECF No. 9.
September 30, 2019, Respondent filed a motion to dismiss,
with exhibits. ECF No. 19. Petitioner has filed a
“Cross-Motion to Dismiss w/Application for a Limited
Order to Stay and Hold Federal Habeas in Abeyance Based upon
Petitioner's Attached Affidavit, ” with exhibits,
considered as a reply by the Court, ECF No. 22, as well as an
“Addendum to Petitioner's Cross-Motion to Dismiss,
” ECF No. 27. See ECF No. 24 (additional copy
of motion (original at ECF No. 22 at 1-8)), ECF No. 23
(additional copy of affidavit (original at ECF No. 22 at
10-14)), ECF No. 26 (additional copy of exhibit list
(original at ECF No. 22 at 9)). Petitioner has also filed a
motion to supplement the record with case law, ECF No. 25,
which is granted.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration of all the issues
raised, the undersigned has determined that no evidentiary
hearing is required for disposition of this matter.
See Rule 8(a), R. Gov. § 2254 Cases in U.S.
Dist. Cts. For the reasons stated herein, the pleadings and
attachments before the Court show that Respondent's
motion should be granted and the petition should be
dismissed. See Rule 4, R. Gov. § 2254 Cases
(allowing dismissal “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief” in federal court).
Marts, currently confined at Gulf Correctional Institution in
Wewahitchka, Florida, is serving a sixteen-year prison
sentence pursuant to a 2008 conviction in Case No.
2007-CF-06067 from the First Judicial Circuit Court, Escambia
County, having been convicted of fraudulent use of personal
identification information, uttering a forged instrument,
grand theft, and resisting an officer with violence. See
Marts v. Inch, No. 4:19cv054-RH/CAS, ECF No. 15 at 2
(Report and Recommendation); Marts v. Jones, No.
3:17cv651-LC/CAS, ECF No. 12 at 2 (Report and
Recommendation); see also, e.g., Marts v. Fla.
Dep't of Corr. Sec'y, 4:16cv783-WS/CAS, ECF No.
1; Marts v. United States, 3:16cv587-MCR/CJK, ECF
No. 8 at 1-2 (Report and Recommendation); Marts v.
Jones, 3:15cv399-RV/EMT. Marts has filed other §
2241 petitions in this Court. See Marts v. Inch, No.
4:19cv054-RH/CAS; Marts v. Fla. Dep't of Corr.
Sec'y, No. 4:16cv783-WS/CAS; Marts v. United
States of America, No. 3:16cv587-MCR/CJK; Marts v.
Jones, No. 3:16cv453-LC/EMT. He has also previously
sought relief pursuant to 28 U.S.C. § 2254. See
Marts v. Jones, No. 3:15cv399-RV/EMT; Marts v.
Sec'y, Fla. Dep't of Corr., No.
3:13cv025-MCR/EMT; Marts v. Tucker, No.
3:10cv240-LC/EMT; Marts v. McNeil, No.
§ 2241 petition, Marts indicates he challenges his
conviction, sentence, and prison disciplinary action,
specifically referencing the saving clause. ECF No. 9 at 2.
He raises four grounds: (1) “Unavailability of an
adequate state corrective process[, ] Title 28 U.S.C. §
2254(B)(i)(ii), U.S.C.A. 14th, ” ECF No. 9 at 4; (2)
“Suspension of writ of habeas corpus in violation of
U.S.C. Art. 1 § 9 cl. 2, Fla. Const. Art. 1, & 28
U.S.C. § 2241 (C)(3), ” ECF No. 9 at 4; (3)
“Sanction orders imposed in violation of Federal and
State separation of powers doctrine Art. III sect. 2 U.S.C.
& Fla. Const. Art. II Sect. 3, ” ECF No. 9 at 9;
and (4) “Disciplinary sanctions imposed in violation of
U.S.C.A. 14th, ” ECF No. 9 at 9. He requests this Court
grant him relief under the saving clause and “vacate
all sanction orders, with orders he be discharge for an
illegal sentence that does not qualify for prison.”
Id. at 16.
motion to dismiss, Respondent asserts Marts did not exhaust
his available administrative and state court remedies
regarding his claims, and he is now procedurally barred from
bringing these claims. ECF No. 19 at 1. Respondent asserts
Marts seeks removal of a disciplinary report from his record
and restoration of forfeited gain time. ECF No. 19 at 2, 4;
see ECF No. 9 at 9, 12-13, 16. Respondent notes that
Marts' petition is subject to both § 2241 and §
2254. ECF No. 19 at 2.
explained to Petitioner in his other cases, although he has
labeled his request for habeas relief as arising under 28
U.S.C. § 2241, this action is also governed by 28 U.S.C.
§ 2254 because he is “in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2254(a);
see Medberry v. Crosby, 351 F.3d 1049, 1062 (11th
Cir. 2003) (holding that state prisoner in custody pursuant
to state court criminal conviction has single habeas corpus
remedy, governed by § 2241 and § 2254, and that
“if a state prisoner is ‘in custody pursuant to
the judgment of a State court,' his petition is subject
to § 2254”). See also Marts, 4:16cv783,
ECF No. 7 at 3; Marts, 3:16cv587, ECF No. 8 at 3;
Marts, 3:16cv453, ECF No. 8 at 3 (Report and
Recommendation). As also explained to Petitioner in his other
cases, under § 2254, “an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court [shall be entertained] only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a); see Marts, 4:16cv783 at 3;
Marts, 3:16cv587, ECF No. 8 at 3; Marts,
3:16cv453, ECF No. 8 at 3. And, as previously explained to
Petitioner, he has already filed several § 2254 habeas
corpus petitions in this Court, challenging this judgment and
sentence. See Marts, 3:15cv399, ECF No. 32 (Report
and Recommendation detailing previous § 2254 cases filed
to the extent Marts here challenges his judgment and
sentence, this Court does not have jurisdiction to consider a
second or successive § 2254 petition unless the Eleventh
Circuit Court of Appeals has authorized its filing.
See 28 U.S.C. § 2244(b)(3); Burton v.
Stewart, 549 U.S. 147 (2007) (holding that federal
district court lacked jurisdiction to entertain § 2254
petition because state inmate did not obtain order from Court
of Appeals authorizing him to file successive petition).
Nothing indicates Marts has obtained authorization to file a
successive habeas petition, and he has previously been
advised of this requirement. Petitioner Marts cannot avoid
this requirement by labeling his petition as one under §
extent Marts argues the saving clause applies to allow review
of his claims, this argument lacks merit. The saving clause
applies only in limited circumstances, where federal
prisoners do not have an adequate and effective remedy under
28 U.S.C. § 2255. See McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017)
extent Marts challenges his disciplinary report and
revocation of gain time, he has not exhausted his
administrative remedies, as Respondent asserts. Moreover, to
the extent Marts challenges the Florida Supreme Court's
imposition of sanctions for his frivolous filings, he was
afforded due process in that proceeding and his challenge
lacks merit, as this Court ...