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 2017 conviction
in the United States District Court for the Southern District
of Florida pursuant to a plea agreement. See Pet. at 1. See
also Southern District Case No. 16-20695-MORENO. Petitioner
pled guilty in part to possession of ammunition by a
convicted felon under 18 U.S.C. § 922(g)(1).
his conviction, Petitioner filed a motion to vacate under 28
U.S.C. § 2255 in the Southern District, which the Court
denied. See Southern District Case No. 1:16-cr-20695-FAM.
Thereafter, Petitioner sought permission from the Eleventh
Circuit Court of Appeals to file a second or successive
§ 2255 motion, which the court of appeals denied. See
Eleventh Circuit Case No. 19-10073. Petitioner now seeks to
challenge his conviction under § 2241, contending §
2255's saving clause applies. See Pet. at 11.
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 vary narrow
circumstances does § 2255's saving clause allow a
federal prisoner to seek relief under § 2241:
(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). McCarthan makes
clear that “‘ordinary sentencing challenges'
may not be brought under § 2241.” Donaldson v.
Warden, FCI Coleman Medium, 691 Fed.Appx. 602, 603 (11th
Cir. 2017) (quoting McCarthan, 851 F.3d at 1092).
“[A]ny ‘cognizable claim' that could have
been brought under § 2255, even if circuit precedent or
a procedural bar would have foreclosed the claim, cannot be
brought under § 2241 in this circuit after
if a petitioner could have raised his claim in a § 2255
motion, even if that claim would have been unsuccessful, the
remedy is adequate and effective. McCarthan, 851
F.3d at 1086, 1090. 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 claim “could and should have been
raised in a § 2255 motion” even if subject to
dismissal because of a procedural bar or binding precedent);
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 he could
have raised his claims in his § 2255 motion, and the
limited circumstances under which § 2255's saving
clause applies are not present here. Importantly, Petitioner
does not challenge the execution or calculation of his
sentence. See Pet. at 12, 14, 16. Additionally, the
sentencing court remains available. Petitioner asserts the
saving clause applies because a remedy under § 2255 was
inadequate given a Supreme Court decision, Rehaif v.
United States, 139 S.Ct. 2191 (2019), which was decided
after Petitioner sought post-conviction relief. See Pet. at
8, 14. In Rehaif, the Court held a conviction
under § 922(g)(1) requires the government to prove the
defendant knowingly violated each element of the statute
including the “status” element, which, in that
case, was the defendant's status as an illegal or
unlawful alien. Id. at 2195-96, 2198.
argues he could not have violated § 922(g)(1) because he
did not know he was a convicted felon when he carried
ammunition. See Pet. at 12. As such, he contends, he did not
“knowingly” belong to the “relevant
category or persons barred from possessing” ammunition.
Id. See also Rehaif, 139 S.Ct. at 2200.
Petitioner asserts he could not have raised this argument in
his § 2255 motion because the Rehaif decision had not
yet been decided. See Pet. at 12. To the extent Petitioner
argues a change in the law provides a new theory by which he
may challenge his conviction, McCarthan forecloses his
argument that relief under § 2255 was inadequate. See
McCarthan, 851 F.3d at 1080.
McCarthan, the petitioner argued the saving clause applied
because after the court decided his motion to vacate under
§ 2255, there was a change in caselaw interpreting the
Armed Career Criminal Act's sentence enhancement
provision. Id. at 1079. The court overruled eighteen
years of precedent and held “a change in caselaw does
not make a motion to vacate a prisoner's sentence
‘inadequate or ineffective to test the legality of his
detention.'” Id. at 1080 (quoting 28
U.S.C. § 2255(e)). The court stressed, the term
“remedy” as used in § 2255(e) “does
not promise ‘relief.'” Id. at 1086.
The court continued:
The “means” are not inadequate when circuit
precedent forecloses relief on a claim. The remedy of a
motion to vacate permitted [the petitioner] to bring his
claim and seek en banc or Supreme Court review to change the
substantive rule of law. That a court might reject a
prisoner's argument does not render his “remedy by
motion” an inadequate “means by which” to
challenge the legality of his sentence. A procedural rule
that might prevent success on a particular motion does not
render the remedy an inadequate “means” so long
as it is capable of “enforc[ing]” or
“redress[ing]” the right. The motion to vacate is
an adequate remedy for [the petitioner] because if he
succeeds, the court must “vacate and set the judgment
aside” and either release or retry him. 28 U.S.C.
Rehaif changed the applicable law under which Petitioner was
convicted, a change in caselaw does not mean the remedy
available under § 2255 was inadequate or ineffective.
Id. Importantly, however, in Rehaif, the Court did
not change the applicable law. Rather, the Supreme Court
clarified Congress's intent with respect to the term
“knowingly, ” by applying the statutory
interpretive maxim that there is a “presumption in
favor of ‘scienter'” when conduct is
criminalized. 139 S.Ct. at 2195. In fact, the Court held
there was no reason to “depart” from the
“longstanding presumption, traceable to the common law,
that Congress intends to require a defendant to possess a
culpable mental state regarding ‘each of the statutory
elements that criminalize otherwise innocent
conduct.'” Id. (emphasis added) (quoting
United States v. X-Citement Video, Inc., 513 U.S.
64, 72 (1994)).
the Court analyzed the scienter requirement of §
922(g)(1) in 2019 did not prevent Petitioner from arguing
(either during plea negotiations, at a trial,  or in his
post-trial motion) that the government could not prove the
“status” element. To the extent Petitioner
suggests his trial counsel was ineffective, he could and
should have raised such an argument in his § 2255
motion. As such, Petitioner fails to demonstrate the remedy
under § 2255 was “inadequate or ineffective to
test the legality of his detention.” See § 2255(e)