Perez v. Rathman

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS, that petition for writ of habeas corpus under section 2254 is denied as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/28/12. (SPT ) Modified on 12/28/2012 (LCW, ).

FILED
2012 Dec-28 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
AUGUSTINE PEREZ,
Petitioner,
vs.
JOHN T. RATHMAN,
Respondent.

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Case No. 1:11-cv-00949-CLS

ORDER DENYING § 2241 RELIEF
On November 16, 2012, the magistrate judge filed his report and
recommendation in this action, finding that the petitioner’s attempt to use 28 U.S.C.
§ 2241 to challenge his 1991 drug convictions is foreclosed by the requirements of
Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), for resorting to § 2241 as an
alternative to § 2255. Petitioner filed his timely objections to the report and
recommendation on December 10, 2012.1 Having now carefully and fully reviewed
de novo the report and recommendation, the objections, and other materials in the

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The objections assert that, although the magistrate judge filed his report and
recommendation on November 16, 2012, it was not put in the mail to petitioner until November 26,
2012, and he has attached a copy of the envelope in which he received the report and
recommendation. The postal stamp date on the envelope shows that it was mailed on November 26,
2012. The court deems the petitioner’s objections to be timely filed within fifteen (15) days after
the date of mailing.

record, the court finds that the objections are due to be overruled, and the report and
recommendation adopted.
Petitioner’s objections seem to raise the following arguments:
(1) That the report and recommendation erroneously applied Wofford to
bar § 2241 relief, even though petitioner raises “structural defects,” not
mere “trial defects,” underlying his conviction, which in themselves
allow resort to § 2241;
(2) That the report and recommendation failed to consider the argument
that petitioner’s previous § 2255 proceedings were rendered “inadequate
and ineffective,” for purposes of resorting to § 2241, because the § 2255
judge should have recused himself from the proceedings in light of the
claim in the § 2255 motion that the judge was biased against petitioner
during trial; and
(3) That the report and recommendation failed to recognize petitioner’s
claim to compel the Bureau of Prisons to credit petitioner with 18months
against his sentence based on a letter from the sentencing judge.
The court will address each of these objections in turn.
A. “Structural Errors” and the § 2241 Portal
Petitioner’s first argument contends that the report and recommendation
erroneously applied Wofford v. Scott too narrowly by failing to recognize that
“structural errors” in the underlying conviction and sentence are so serious that they
open the § 2241 portal. He contends that “structural errors” — a certain class of
constitutional errors in criminal proceedings that render the entire proceeding
fundamentally unfair without the necessity of proving actual prejudice — so
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undermine the fairness and reliability of trial proceedings that they are sufficient in
themselves to warrant opening the § 2241 portal for review, regardless of whether the
three-prong Wofford test is met. Petitioner points to two particular “structural errors”
underlying his conviction: first, he was denied counsel of his choice when his efforts
to recover money seized from him were stayed until after his criminal trial, and
second, the trial judge was biased against him and deprived him of a fundamentally
fair trial.
As the magistrate judge explained, the Eleventh Circuit has strictly and
narrowly confined the operation of § 2241 as an alternative remedy to the motion
provided federal prisoners under § 2255. Section 2255 provides the exclusive postconviction remedy for federal prisoners challenging the constitutional validity of their
federal convictions and sentences, unless that motion is “inadequate and ineffective”
to test the legality of the conviction or sentence. The so-called “savings clause” in
§ 2255 states:
[a]n application for a writ of habeas corpus in behalf of a prisoner who
is authorized to apply for relief by motion pursuant to this section, shall
not be entertained if it appears that the applicant has failed to apply for
relief, by motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy by motion
is inadequate or ineffective to test the legality of his detention. [Italics
added].

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This circuit, however, has narrowly construed that language to limit its application
only to a strictly confined set of circumstances. In Wofford v. Scott, the court
established a three-prong test for its application, which requires a showing that “(1)
[the petitioner’s] 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 otherwise should have been raised at the petitioner’s trial,
appeal, or first § 2255 motion.” Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.
1999). This test has been reiterated several times, and is now well-established. See
Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003); Santivanez v. Warden, FCC
Coleman-USP II, 416 F. App’x 833, 835 (11th Cir. 2011) cert. denied, 132 S. Ct. 272,
181 L. Ed. 2d 161 (U.S. 2011); Smith v. United States, 263 F. App’x 853, 856 (11th
Cir. 2008); Griffin v. Wiley, 141 F. App’x 843, 844 (11th Cir. 2005). To open the
“portal” to § 2241 as an alternative to use of a § 2255 motion, the prisoner must prove
all three prongs of the test.
Petitioner argues that the Supreme Court decision in United States v. GonzalezLopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), holds that the
erroneous deprivation of a criminal defendant’s right to counsel of his own choosing
is a “structural error,” not subject to harmless-error analysis. Because the error relates
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to the fundamental guarantees of fairness underlying the trial procedure, he contends
that such “structural defects” must, of their own power open the § 2241 portal of the
§ 2255 savings clause, notwithstanding the Wofford test. Whether or not GonzalezLopez has been made retroactive to collateral review2 under the first prong of the
Wofford test, the magistrate judge correctly determined that such an error, assuming
it occurred, does not mean that the petitioner was convicted of a “nonexistent”
offense, as required by the second prong. Petitioner was represented by counsel at
trial in 1991, albeit not counsel of his choosing. He was convicted of drug offenses
that still exist today notwithstanding the holding in Gonzalez-Lopez. Thus, the
magistrate judge correctly found that petitioner could not meet the Wofford test.
Nothing in Wofford itself suggests that “structural” errors or defects escape the
three-prong test for opening the § 2241 portal. Nor is there anything in GonzalezLopez suggesting that such claims are retroactively applicable to collateral review,
much less have the power to open the § 2255 savings clause to get to § 2241 review.
Petitioner contends that Wofford recognized the possibility that some undescribed

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The court has been unable to find any Supreme Court or Eleventh Circuit cases stating that
Gonzalez-Lopez applies retroactively, nor has the petitioner cited to any such cases. The court has
found a district court opinion in the Eleventh Circuit that appears to apply it retroactively in a § 2254
case. See Riggio v. Sec’y, Dept. of Corr., 704 F. Supp. 2d 1244, 1251 (M.D. Fla. 2010).
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“fundamental errors” in sentencing might also work to open the portal. Rather, this
is what the circuit court said:
The Seventh Circuit in Davenport suggested in dicta that the savings
clause might apply to some claims involving a “fundamental defect” in
sentencing where the petitioner had not had an opportunity to obtain
judicial correction of that defect earlier. See 147 F.3d at 611. We need
not decide whether the savings clause extends to sentencing claims in
those circumstances, or what a “fundamental defect” in a sentence might
be. It is enough to hold, as we do, that the only sentencing claims that
may conceivably be covered by the savings clause are those based upon
a retroactively applicable Supreme Court decision overturning circuit
precedent.
Wofford v. Scott, 177 F.3d 1236, 1244-45 (11th Cir. 1999). This is a slim reed on
which to hold that the three-prong test does not apply to this case, and the court
declines to do so.
The court finds that the Wofford three-prong test for application of the § 2255
savings clause for allowing review of a federal conviction under § 2241 remains the
standard petitioner must meet. Because neither of his alleged “structural errors” —
denial of counsel of his choice and a judge biased against him — result in a finding
that he was convicted of a “nonexistent offense,” as required by the second prong of
the Wofford test, he cannot invoke the § 2255 savings clause to obtain review of his
claims under § 2241. This objection is overruled.

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B. Inadequacy and Ineffectiveness of § 2255 Due to Bias
Petitioner next argues that, in his particular case, the remedy provided by §
2255 was rendered “inadequate and ineffective” because the judge hearing the
motion was biased against him and should have recused because petitioner asserted
bias as one of his claims for relief from the conviction. He contends that the judge’s
bias prevented petitioner from receiving a full and fair consideration of his § 2255
claim, rendering it inadequate and ineffective for purposes of invoking the savings
clause.
The court disagrees. Even assuming that the § 2255 judge should have recused
himself because one of the claims alleged was that he was biased against petitioner
during the trial of the charges, remedies existed to save the fairness and effectiveness
of the § 2255 proceedings. During the proceedings themselves, petitioner could have
moved the judge to recuse himself and, if denied, sought mandamus review at the
court of appeals. After § 2255 relief was denied, he could have appealed the denial
on the basis of the judge’s erroneous failure to recuse. It is simply is not true that
petitioner had no avenue through which to seek and obtain a fair and adequate § 2255
review of his claims. He was not denied a chance to obtain a fair and adequate review
of his convictions. The objection is overruled.

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C. Eighteen-month Service Credit
Finally, petitioner objects to the magistrate judge’s conclusion that he is not
entitled to § 2241 relief on the entirely separate theory that the Bureau of Prisons
should credit him with eighteen months toward service of his sentence based on a
letter from the sentencing judge indicating that the federal sentence was intended to
run concurrently to a state sentence petitioner was serving. The BOP denied credit
because the time sought had been already credited toward the state sentence. The
BOP noted that § 3585(b) authorizes credit only for time that “has not been credited
against another sentence.” Because petitioner does not dispute that the eighteen
months he seeks was, in fact, credited against his state sentence, the BOP’s response
cannot be said to be arbitrary or capricious.3
Conclusion
For the reasons explained above, the court finds that the petitioner’s objections
to the report and recommendation are due to be, and they hereby are, OVERRULED.
Accordingly, the report is due to be, and it hereby is, ADOPTED, and the
recommendation is ACCEPTED. Petitioner’s application for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, therefore, is DENIED.

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The BOP’s interpretation of § 3585(b) is entitled to deference unless “it is “arbitrary,
capricious, or clearly contrary to law.” Pizzichiello v. Dir. Fed. BOP, 193 F. App’x 907, 909 n. 2
(11th Cir. 2006).
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The Clerk is DIRECTED to mail a copy of the foregoing to the petitioner.
DONE and ORDERED this 28th day of December, 2012.

______________________________
United States District Judge

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