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, )

Cater v. Griffin et al (INMATE2)

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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.

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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).

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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).

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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

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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

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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)

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(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

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