Micheileno-Valencia v. Rothman

Filing 8

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/18/2014. (PSM)

FILED
2014 Mar-18 AM 11:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
CARLOS MICHILENOVALENCIA,
Petitioner,
vs.
JOHN ROTHMAN, Warden
FCI-Talladega,
Respondent.

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Civil Action Number
1:13-cv-1045-AKK-TMP

MEMORANDUM OPINION
On December 9, 2013, the magistrate judge filed his report and
recommendation that the court treat the petition filed by the petitioner on May 30,
2013, as one under 28 U.S.C. § 2241, and dismiss the petition for want of jurisdiction
because petitioner cannot successfully open the “§ 2241 portal” under the savings
clause in § 2255.

Petitioner timely filed his objections to the report and

recommendation, and further supplemented them thereafter. Having now carefully
reviewed and considered de novo the report and recommendation, the objections to
it, and other materials in the court file, the court finds that the objections are to be and
hereby are OVERRULED, and the report and recommendation is ADOPTED and
ACCEPTED.

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Petitioner makes two principal objections: (1) the magistrate judge incorrectly
determined that petitioner cannot meet the first and third prongs of the test in Wofford
v. Scott, 177 F.3d 1236 (11th Cir. 1999) (“the Wofford test”), for invoking the § 2255
savings clause, and (2) the magistrate judge erroneously determined that the Eleventh
Circuit’s decision in United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir.
2012), has no application to petitioner’s conviction. The court addresses both
contentions below.
A.

Alleged incorrect application of the Wofford test
On the first objection, petitioner contends that the Eleventh Circuit recently

changed the Wofford test in Bryant v. Warden, FCC Coleman-Medium, 738 F.3d
1253 (11th Cir. 2013). In Bryant, a sentencing case instead of a challenge to the
underlying conviction, the Eleventh Circuit explained its “synthesis” of the Wofford
line of cases this way:
Wofford, Gilbert II, and Williams guide us on what the statutory terms
in § 2255(e)’s savings clause mean and how to read § 2255(e) in a way
that does not eviscerate or undermine § 2255(h)’s restrictions on second
or successive § 2255 motions but also affords some meaning to the
savings clause.
To show his prior § 2255 motion was “inadequate or ineffective to test
the legality of his detention,” Bryant must establish that (1) throughout
his sentencing, direct appeal, and first § 2255 proceeding, our Circuit’s
binding precedent had specifically addressed Bryant’s distinct prior state
conviction that triggered § 924(e) and had squarely foreclosed Bryant’s
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§ 924(e) claim that he was erroneously sentenced above the 10–year
statutory maximum penalty in § 924(a); (2) subsequent to his first §
2255 proceeding, the Supreme Court’s decision in Begay, as extended
by this Court to Bryant’s distinct prior conviction, overturned our
Circuit precedent that had squarely foreclosed Bryant’s § 924(e) claim;
(3) the new rule announced in Begay applies retroactively on collateral
review; (4) as a result of Begay’s new rule being retroactive, Bryant’s
current sentence exceeds the 10–year statutory maximum authorized by
Congress in § 924(a); and (5) the savings clause in § 2255(e) reaches his
pure § 924(e)-Begay error claim of illegal detention above the statutory
maximum penalty in § 924(a).

Bryant, 738 F.3d at 1274. Although Bryant renumbered and added to the Wofford
three-prong test used by the magistrate judge, the same concepts the magistrate judge
used remain applicable. Specifically, the magistrate judge concluded that the
petitioner could not show that any retroactively applicable Supreme Court case
implicated the validity of his conviction and that circuit precedent squarely foreclosed
the petitioner’s argument. These conclusions remain valid as they are consistent with,
respectively, the second and first prongs of the test enunciated in Bryant. Indeed,
petitioner does not cite any retroactively applicable Supreme Court decision that
purportedly overrules circuit precedent in any way relevant to this conviction. As the
magistrate judge noted, petitioner cites only United States v. Bellaizac-Hurtado, 700
F.3d 1245 (11th Cir. 2012), which has no relevance to the issues here. More
specifically, even assuming a circuit case could operate under the Bryant test as

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petitioner asserts, Bellaizac-Hurtado did not overrule circuit precedent, and, in fact,
expressly says that it involved a question of first impression in this circuit. Thus, even
under the Bryant explication of the § 2255 savings clause, the magistrate judge
correctly determined that petitioner cannot successfully open the § 2241 portal.
B.

Alleged erroneous reading of Bellaizac-Hurtado
Petitioner’s second objection is that the magistrate judge misread and

misunderstood the holding in Bellaizac-Hurtado, and that a correct reading would
reveal that the government convicted the petitioner under an unconstitutional statute.
Contrary to petitioner’s contention, the magistrate judge correctly recognized that
Bellaizac-Hurtado, which involved the territorial waters of another nation, is
fundamentally distinguishable from petitioner’s case because petitioner was convicted
of drug trafficking aboard a ship without nationality “on the high seas.” In BellaizacHurtado, the court discussed the various constitutional bases on which Congress
could criminalize conduct beyond the borders of the United States. Specifically,
Article I, sec. 8, cl. 10 of the Constitution grants Congress the power to legislate with
respect to three areas: piracies, felonies on the high seas, and offenses against the Law
of Nations. Although the court found that drug trafficking is not an offense against
the Law of Nations and, thus, beyond Congress’s constitutional power to proscribe
under the Law of Nations, the court expressly affirmed that Congress has more
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expansive powers to legislate with respect to “felonies on the high seas.” BellaizacHurtado, 700 F.3d at 1257. The distinction is critical in this case because, unlike the
defendant in Bellaizac-Hurtado, petitioner’s drug trafficking occurred on the high
seas—in international waters. Thus, Bellaizac-Hurtado simply does not apply to his
conviction.
Perhaps because petitioner recognizes that Bellaizac-Hurtado involved offenses
occuring in territorial waters of sovereign nations, petitioner abandoned his original
acknowledgment that the charge against him involved trafficking in international
waters of the eastern Pacific Ocean, and now contends that he was actually in the
territorial waters of Panama. Based on Article 55 of the United Nations Convention
on the Law of Nations (“UNCLOS”), petitioner contends:

The United Nations Convention of the Law of the Sea (UNCLOS) states
in article 55 that the Exclusive Economic Zone is an area beyond and
adjacent to the territorial sea and that Article 57 states that the
[Exclusive] Economic Zone shall not extend beyond 200 nautical miles
from the baselines from which the breadt[h] of the territorial sea is
measured, and the fact that he was arrested about 110 miles [] south of
the Isla de Coiba in Panama, thus established that Petitioner was on
Panamanian Territorial Waters not on International Waters.

(Doc. 6, p. 3). The short answer to this argument, however, is that the United States
is not a signatory to UNCLOS and, as such, is not bound to UNCLOS’ definition of

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territorial waters or Exclusive Economic Zones. United States v. Ali, 718 F.3d 929,
936 (D.C. Cir. 2013); United States v. Jho, 534 F.3d 398, 406 (5th Cir. 2008).1 But
even assuming the United States is somehow bound by UNCLOS, the Convention
itself differentiates the “territorial seas” of a nation from the “Exclusive Economic
Zone,” which lies “beyond and adjacent to the territorial sea.” Article 55, Third
United Nations Convention on the Law of the Sea, 21 I.L.M. 1245 (1982) (italics
added). While UNCLOS authorizes the coastal State to explore and economically
exploit the Exclusive Economic Zone (“EEZ”), subject to the provisions of UNCLOS,
it does not make the EEZ part of the territorial waters of the coastal State, which
waters extend only 12 miles from the coast. Article 3, Third United Nations
Convention on the Law of the Sea; United States v. Jho, 534 F.3d 398, 407 (5th Cir.
2008) (“The ‘territorial sea’ … is a coastal zone defined by UNCLOS as a belt of sea
not exceeding 12 nautical miles from the coast.”); cf. Grupo Protexa, S.A. v. All
American Marine Slip, a Div. of Marine Office of America Corp., 20 F.3d 1224, 1240
(3d Cir. 1994) (holding that shipwreck more than 12 miles from coast but within EEZ
not within territorial waters of Mexico). The EEZ under UNCLOS simply is not the
same as that nation’s territorial waters. Thus, petitioner’s argument that he was in
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Although it appears the United States has recognized UNCLOS through UN Security Council
resolutions, it has done so only with respect to UNCLOS’s impact on piracy, not other felonies “on
the high seas.” Ali, 718 F.3d at 936.

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Panamanian territorial waters, like the defendant in Bellaizac-Hurtado, fails.
Because petitioner has failed to open the “§ 2241 portal” by establishing that
the remedy under § 2255 is inadequate or ineffective, the magistrate judge correctly
determined that petitioner could not proceed under § 2241 because § 2255 and its
restriction on “second and successive motions” remains the exclusive remedy for
petitioner. The § 2241 petition must be dismissed without prejudice because the court
thus lacks jurisdiction to consider it.

By separate order the petition will be

DISMISSED for want of jurisdiction.
The Clerk is DIRECTED to mail a copy of the foregoing to the petitioner.
Done the 18th day of March, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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