United States District Court, M.D. Florida, Ocala Division
ORDER OF DISMISSAL WITHOUT PREJUDICE
J. DAVIS United States District Judge
an inmate of the federal correctional system proceeding pro
se, initiated this case by filing a Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1; Pet.).
Petitioner challenges his 2008 conviction out of the United
States District Court for the Western District of Virginia.
He asks this Court to vacate his sentence and resentence him
to time served. See Pet. at 1, 26. Petitioner
concedes he previously challenged his conviction under 28
U.S.C. § 2255, though he contends a “new
rule” makes his sentence illegal. Id. at 4. He
asserts the “saving clause, ” § 2255(e),
permits him to proceed under § 2241 because when he
filed his motion to vacate under § 2255, “his
claim was foreclosed by circuit or Supreme Court
precedent.” Id. at 7.
motion to vacate under § 2255 is the “exclusive
mechanism for a federal prisoner to seek collateral relief
unless he can satisfy the ‘saving clause.'”
McCarthan v. Dir. of Goodwill Indus.- Suncoast,
Inc., 851 F.3d 1076, 1079, 1081 (11th Cir.), cert.
denied sub nom. McCarthan v. Collins, 138 S.Ct. 502
(2017) (“Congress gives a federal prisoner one
opportunity to move to vacate his sentence.”). The
saving clause is triggered only when a prisoner's remedy
under § 2255 is “inadequate or ineffective to test
the legality of his detention.” See §
2255(e). The Eleventh Circuit now makes clear that only under
limited circumstances does § 2255's saving clause
allow a federal prisoner to seek relief under § 2241.
McCarthan, 851 F.3d at 1090. Under
McCarthan, the saving clause applies only under
these narrow circumstances:
(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), cert. denied sub nom. Bernard v.
Jarvis, 138 S.Ct. 1164 (2018) (citing
McCarthan, 851 F.3d at 1092-93).
if a petitioner could have brought his claims in a §
2255 motion, even if those claims would have been foreclosed
by binding precedent, the remedy is adequate and effective.
McCarthan, 851 F.3d at 1086, 1090 (holding
petitioner's remedy under § 2255 was “adequate
and effective to test the legality of his detention”
because he filed a petition challenging his sentence, which
“he could have brought in a motion to vacate”).
See also Strouse v. Warden, USP Coleman II,
777 Fed.Appx. 468, 469 (11th Cir. 2019) (holding the saving
clause did not apply because the petitioner's claims
“could and should have been raised in a § 2255
motion”); Bernard, 686 Fed.Appx. at 730
(clarifying that, under the McCarthan test, “the only
relevant consideration [for application of the saving clause]
is whether the prisoner would have been permitted to bring
that type of claim in a § 2255 motion”).
is not entitled to proceed under § 2241 because the
limited circumstances under which § 2255's saving
clause applies are not present here. For example, Petitioner
does not challenge the execution of his sentence, and he does
not assert the sentencing court is unavailable. See
Bernard, 686 Fed.Appx. at 730-31. Rather, Petitioner
contends he could not have brought his claims in his §
2255 motion because they were “foreclosed by circuit or
Supreme Court precedent.” See Pet. at 7.
Petitioner does not explain how or why his claims were
foreclosed. However, even if they were, he fails to
demonstrate the saving clause applies under the McCarthan
test. See McCarthan, 851 F.3d at 1086
(“That [petitioner's] argument was foreclosed by
precedent . . . is irrelevant.”).
not only could Petitioner have raised his claims in his
§ 2255 motion, but he did. See Docs. 157, 158, W.D. Va.
Case No. 2:07CR00014. In his § 2255 motion, Petitioner
attacked his 2008 conviction asserting numerous grounds,
including the two he asserts in the Petition before this
Court: the district court failed to instruct the jury that
“specific intent” is an element of the crime for
which he was convicted; and the ineffective assistance of
counsel for his attorney's failure to object to the jury
instructions. See Pet. at 5, 22. Cf. Doc. 158 at 25, 27, W.D.
Va. Case No. 2:07CR00014 (asserting the district court erred
for failing to charge the jury on specific intent, and his
trial counsel was ineffective for failing to object to the
Petitioner raised his claims in his § 2255 motion, his
remedy under § 2255 was “adequate and effective to
test the legality of his detention.” See
McCarthan, 851 F.3d at 1090. Petitioner may not use
the saving clause as a mechanism to avoid application of the
requirement to obtain permission to file a second or
successive motion to vacate. See Strouse, 777
Fed.Appx. at 468 (“A prisoner cannot utilize the saving
clause as a means to circumvent . . . ‘the process for
obtaining permission to file a second or successive'
§ 2255 motion.”) (citing McCarthan, 851
F.3d at 1091).
pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts (directing
sua sponte dismissal if it is clear the petitioner is not
entitled to relief), this case is due to be dismissed.
Accordingly, it is
1. This case is DISMISSED without prejudice.
2. The Clerk of Court shall enter judgment
dismissing this case without prejudice, terminate any pending
motions, and close this case.