Cater v. Griffin et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by James Otis Cater be denied and this cse be dismissd with prejudice. Objection to Recommendation due on or before 8/28/06. Signed by Judge Delores R. Boyd on 8/14/2006. (cb, )

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Cater v. Griffin et al (INMATE2) Doc. 4 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ J A M E S OTIS CATER P e t i t io r e r , v. D E B O R A H GRIFFIN, AUSA, Southern District of Alabama, et al., R e s p o n d e n ts . _______________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P e titio n e r , James Cater ["Cater"], a federal inmate, seeks once again to mount a c h a llen ge in this court to his conviction for conspiracy to possess with intent to distribute c o c ain e in violation of 21 U.S.C. 841(a), 846. 1 As he did in his previous action, Cater a lle ge s that the conduct of an assistant federal prosecutor in Mobile, Alabama, in filing a fe d e ra l prosecution against him based on the same act and/or conduct made the subject of a previous State prosecution against him resulted in a void indictment. In support of his a rgu m e n t Cater alleges that the Government failed to obtain the requisite approval for such a c tio n from the United States Department of Justice with regard to its Petite Policy which is designed to limit the exercise of power to bring successive federal (or state) prosecutions * * * * * 2:06-CV-697-WKW (WO) On August 24, 2005 Cater filed a Petition for Writ of Mandamus in this court seeking issuance of a writ directing the assistant federal prosecutor who prosecuted his case to dismiss the indictment. See Cater v. Griffin, Civil Action No. 2:05-CV-808-MHT (M.D. Ala. 2005). By order entered September 26, 2005 the case was transferred to the United States District Court for the Southern District of Alabama for review and disposition. 1 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 2 of 7 u n le ss the prosecution has been approved by the Assistant Attorney General for the United States. (Doc. No. 1.) Cater requests that a writ of habeas corpus be directed to Respondent Deborah Griffin c o m m a n d in g her to produce documentary proof which establishes the authority, jurisdiction, a n d legality for his current incarceration. Alternatively, Cater seeks his immediate release. I . FACTS In September 1990 Cater entered a guilty plea to unlawful possession of cocaine in th e Circuit Court for Morgan County, Alabama. The trial court sentenced Cater to a fivey e a r prison term. Cater subsequently faced federal charges arising out of the same incident re la te d to the basis for his state court conviction. Cater's petition reflects that on August 26, 1 9 9 2 a federal grand jury returned a superceding indictment charging him with conspiracy w ith intent to distribute cocaine in violation of 21 U.S.C. 841(a) and 846. On March 19, 1 9 9 3 a jury found Cater guilty as charged in the indictment. His sentence of 300 months' im p ris o n m e n t for his conviction was later reduced to a term of 240 months. (Doc. No. 1 at p gs . 2-3.) Court records establish that Cater has filed prior challenges to his federal c o n vic tio n , including two motions under 28 U.S.C. 2255, a motion for new trial, a motion to correct sentence, and two petitions for writ of error coram nobis. See United States v. C a te r, Criminal No. 92-00133 (S.D. Ala.); see also Cater v. Griffin, Civil Action No. 1:05C V -55 1 -C B (S.D. Ala. 2005). 2 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 3 of 7 II. DISCUSSION A review of the allegations contained in the instant petition, filed pursuant to 28 U .S.C . 2241, reflect that Cater seeks to attack the constitutionality of his 1993 judgment o n a drug related offense imposed upon him by the United States District Court for the So u th e rn District of Alabama. The law is well settled that 28 U.S.C. 2255 is the exclusive re m e d y for challenging the validity of a conviction and/or sentence imposed by a federal c o u rt, unless "the remedy by [such] motion is inadequate or ineffective to test the legality of [th e inmate's] detention." Title 28 U.S.C. 2255. It is clear from a review of the petition th a t this action is filed pursuant to 2241 in an attempt to circumvent the applicable oney e a r period of limitation and/or the constraint on successive 2255 motions contained in 28 U .S.C . 2244(b)(3)(A).2 However, under no circumstances can this court allow Cater's c irc u m ve n tio n of the procedural gatekeeping provisions contained in the AEDPA as 2255 is not rendered inadequate or ineffective to challenge the legality of a petitioner's detention m e re ly because the applicable limitation period has expired or a subsequent motion under th e section would be barred as successive. Thus, under the circumstances of this case, Cater c a n n o t proceed on his claims in a 2241 petition. T h e habeas petition and supporting arguments demonstrate that Cater's claims would b e barred from review in a 2255 motion before the United States District Court for the 3. "A 1-year period of limitation shall apply to a motion under this section." 28 U.S.C. 2255 6. "Before a second or successive [28 U.S.C. 2255 motion] . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. 2244(b)(3)(A). 2 3 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 4 of 7 So u th e rn District of Alabama by the AEDPA's gatekeeping provisions on untimely and s u c c es s ive petitions. The inadequate and ineffective "savings clause of 2255 applies to a c la im when: ( 1) that claim is based upon a retroactively applicable Supreme Court decision; (2 ) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, (3) circuit law squarely foreclosed such a claim at the time it o therw ise should have been raised in the petitioner's trial, appeal, or first 2255 motion." W o ffo rd v. Scott, 177 F.3d 1236, 1244 (11 th Cir. 1999). All the Constitution requires, if it re q u ire s anything, is that a reasonable opportunity existed through which an inmate could h ave pursued judicial relief on his claims. Id. "[T]he only sentencing claims that may c o n c e ivab ly be covered by the savings clause are those based upon a retroactively applicable Su p re m e Court decision overturning circuit precedent." Id. at 1245. Cater does not meet each of the prerequisites necessary to invoke application of the savin gs clause of 2255, thereby precluding relief in a 2241 proceeding. His claims are n o t premised upon a Supreme Court decision issued after his conviction which was made re tro a c tive ly applicable to such conviction. Moreover, Cater has not been "convicted of any c rim e which a retroactively applicable Supreme Court decision overturning prior circuit p re c ed e n t has made clear is nonexistent." Wofford, 177 F.3d at 1245. Consequently, Cater's ch allen ge to his conviction is not based upon a retroactively applicable Supreme Court d e c is io n . Finally, pertinent federal law did not foreclose Cater from presenting the claims n o w before this court at the time such claims otherwise should have been raised. Specifically, th e pleadings filed herein establish that Cater had the requisite procedural opportunity to 4 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 5 of 7 ra is e the instant habeas claims challenging the constitutionality of his conviction and/or s e n te n c e and have such claims decided either at sentencing or on direct appeal. Cater also h a d the opportunity to present his claims in a properly filed 2255 motion. These o p p o rtu n ities are all the Constitution requires. Id. at 1244. The claims pending before this co u rt, therefore, fail to warrant relief under the savings clause of 2255. A federal prisoner cannot use 2241 simply to escape the procedural restrictions p lace d on 2255 motions by the AEDPA. Wofford, 177 F.3d at 1245. "[T]he savings clause . . . does not exist to free a prisoner of the effects of his failure to raise an available claim e a rlie r." Id. "If it were the case that any prisoner who is prevented from bringing a 2255 p e titio n could, without more, establish that 2255 is `inadequate or ineffective,' and th e re fo re that he is entitled to petition for a writ of habeas corpus under 2241(c)(3), then C o n gre ss would have accomplished nothing at all in its attempts --through statutes like the A E D P A -- to place limits on federal collateral review." Triestman v. United States, 124 F.3d 3 6 1 , 376 (2 nd Cir. 1997); see also In re Dorsainvil, 119 F.3d 245, 251 (3 r d Cir. 1997) (a fe d e ra l petitioner may not proceed under " 2241 merely because [he] is unable to meet the strin gen t gatekeeping requirements of the amended 2255. Such a holding would effectively e visc e ra te Congress's intent in amending 2255."); In re Vial, 115 F.3d 1192, 1194 n. 5 (4 th C ir. 1997) (internal citations omitted) ("The remedy afforded by 2255 is not rendered in a d e q u ate or ineffective merely because an individual has been unable to obtain relief under th a t provision, . . . or because an individual is procedurally barred from filing a 2255 m o tio n . . . "). In light of the foregoing, the court concludes that Cater' claims challenging 5 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 6 of 7 the constitutionality of his conviction are not cognizable in a 28 U.S.C. 2241 petition. III. CONCLUSION A c co rd in g l y , it is the RECOMMENDATION of the Magistrate Judge that the 28 U . S.C . 2241 petition for habeas corpus relief filed by Petitioner James Cater be DENIED an d this case be DISMISSED with prejudice. It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before August 28, 2006. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which the party is objecting. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d vis e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a i l u r e to file written objections to the proposed findings and advisements in the M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v. W a in wr ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) 6 Case 2:06-cv-00697-WKW-DRB Document 4 Filed 08/14/2006 Page 7 of 7 (e n banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. D o n e , this 14 th day of August 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE 7

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