Wess v. Fernandez

Filing 5

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 8/14/17. (SAC )

FILED
2017 Aug-14 PM 04:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
GENESIS WESS,
Petitioner,
v.

ACTING WARDEN FERNANDEZ,
Respondent.

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CIVIL ACTION NO.
1:17-cv-00801-KOB-JEO

MEMORANDUM OPINION
This is a habeas corpus case filed pursuant to 28 U.S.C. § 2241 and the
“savings clause” of 28 U.S.C. § 2255(e), by Genesis Wess, pro se, a federal
prisoner at the Federal Correctional Institution in Talladega, Alabama. (Doc. 1).
In his petition, Wess challenges his federal sentence imposed in 2000 by the
United States District Court for the Eastern District of Louisiana after Wess pled
guilty to federal drug charges. (Id. at 1-2) The magistrate judge to whom the
action was referred entered a Report and Recommendation, see 28 U.S.C. §
636(b)(1), proposing that the petition be dismissed for want of jurisdiction. (Doc.
3). Wess has now filed timely objections to the R&R. (Doc. 4). Within those
objections is a motion in the alternative to transfer the action to the sentencing
court in lieu of dismissing the petition. (Id. at 4-7). For the reasons that follow,

the court concludes that the magistrate judge’s R&R is due to be accepted, that the
action is due to be dismissed for lack of jurisdiction, and that the motion to
transfer is due to be denied.
I.
In his habeas petition, Wess argues that he was improperly sentenced as a
career offender under the then-mandatory United States Sentencing Guidelines.
Specifically, he contends that, based on the Supreme Court’s recent decision in
Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016), he is “actually
innocent” of his Guidelines career offender enhancement, on the theory that his
prior Mississippi state conviction for distribution of a controlled substance, in
violation of Miss. Code § 41-29-139, was erroneously counted as a felony
conviction for “a controlled substance offense” as defined in U.S.S.G. § 4B1.2(b).
The magistrate judge concluded that this court lacks habeas jurisdiction to
hear such a claim attacking a federal sentence. In support, the magistrate judge
relied on two en banc decisions of the Eleventh Circuit Court of Appeals: Gilbert
v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), and McCarthan v.
Director of Goodwill Indust.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en
banc).
In Gilbert, the court held that § 2255(e)’s savings clause does not extend
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habeas jurisdiction to claims by federal prisoners, like Wess, who contend they
were improperly sentenced under the Guidelines, but still within the statutory
maximum for their offenses. 640 F.3d at 1295. And in McCarthan, the court
interpreted the scope of § 2255(e)’s savings clause as being even narrower still,
holding that the statute authorizes habeas jurisdiction “only when [a motion to
vacate a federal sentence under 28 U.S.C. § 2255] cannot remedy a particular kind
of claim.” 851 F.3d at 1099. Thus, the McCarthan court held that, even where a
federal prisoner claims that a retroactively applicable, circuit-precedent-busting
Supreme Court decision establishes that he was improperly sentenced above the
statutory maximum, habeas review is foreclosed because such a claim can
generally be raised in a § 2255 proceeding, even if it might have clearly had no
chance of succeeding at the time. 851 F.3d at 1099-1100.
II.
A.
Wess objects to the R&R, arguing that the magistrate judge failed to discuss
whether the Supreme Court’s decision in Mathis applies retroactively to cases on
collateral review. Citing a host of lower federal court decisions from outside the
Eleventh Circuit, Wess also suggests existence of “a circuit split on the
appropriate remedy” for a claim based on Mathis. (Doc. 4 at 1). Ultimately, he
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contends that this court should adopt the approach taken by the Seventh Circuit
Court of Appeals, which he posits would allow his Mathis claim to be heard in
habeas under § 2241. (Id. at 4).
Unfortunately for Wess, this court is bound to adhere to the holdings of
published decisions of the Eleventh Circuit Court of Appeals unless and until they
are overruled by that court sitting en banc or they are abrogated by the Supreme
Court of the United States. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n. 8
(11th Cir. 2001); Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).
Because the Eleventh Circuit has spoken clearly on the relevant issues in Gilbert
and McCarthan, that is the end of the discussion for this court.
In short, the court must follow Gilbert and McCarthan wholly regardless of
whether other federal courts, including other circuit courts of appeals or, indeed,
this court itself, might agree with their reasoning. See Springer v. Wal-Mart
Associates’ Group Health Plan, 908 F.2d 897, 900 n. 1 (11th Cir. 1990) (“We
need hardly add that even if there were a relevant circuit split, the district court is
bound by controlling Eleventh Circuit precedent.”); see also Barr v. Fernander,
No. 1:17-cv-0843-AKK-JEO, Doc. 5 (N.D. Ala. June 20, 2017).
B.
In the alternative, Wess moves the court to, in lieu of dismissing his habeas
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petition for lack of jurisdiction, transfer the action to the federal district court that
sentenced him, in the Eastern District of Louisiana. (Doc. 4 at 1, 4-7). This court
is authorized, upon finding that it lacks jurisdiction over a civil action, to transfer
the action to another federal district court “in which the action ... could have been
brought at the time it was filed,” if to do so “is in the interest of justice.” 28
U.S.C. § 1631.1
But, to the extent that Wess’s pleading is construed as a habeas corpus
petition filed pursuant to § 2241, as he has labeled it, such an action may be filed,
if at all, only in the district of confinement. See Rumsfeld v. Padilla, 542 U.S. 426,
443 (2004); Garcia v. Warden, 470 F. App’x 735, 736 (11th Cir. 2012); 28 U.S.C.
§ 2241(a), 2243. And because Wess is incarcerated in the Northern District of
Alabama, the federal district court for the Eastern District of Louisiana would lack

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In support of his motion for a transfer to the sentencing court, Wess actually cites the
forum non-conveniens statute, 28 U.S.C. § 1404(a), which authorizes a court to transfer venue to
another court “for the convenience of the parties and witnesses,” if it would serve “the interest of
justice.” While both § 1404(a) and § 1631 authorize transfer of a civil action from one district
court to another “in the interest of justice” and are thus “analogous in operation,” Middlebrooks
v. Smith, 735 F.2d 431, 432 (11th Cir. 1985), if this court lacks jurisdiction, only the latter statue
might apply here, technically speaking. That is, Section 1631 applies where the district court in
which the action was originally filed does not have subject-matter jurisdiction, so the
discretionary choice for the court is between dismissing the action or transferring it to another
district court that would have jurisdiction. By contrast, § 1404(a) applies where the district court
in which the case was originally filed does have jurisdiction, so the court could keep the case, but
the court considers whether to transfer it to another district court with concurrent jurisdiction,
based upon a weighing of the relative convenience to the parties and witnesses afforded by the
respective courts. See Dobard v. Johnson, 749 F.2d 1503, 1507 (11th Cir. 1985).

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jurisdiction to entertain this action as one seeking a writ of habeas corpus. See Lee
v. Wetzel, 244 F.3d 370, 373-74 (5th Cir. 2001) (“As [the petitioner] is
incarcerated in [the federal prison in] Talladega, Alabama, only the district court
the Northern District of Alabama would have jurisdiction to entertain his § 2241
petition.”). Indeed, both the sentencing court and the United States Court of
Appeals for the Fifth Circuit have previously told Wess as much. See Wess v.
United States, 61 F. App’x 920, 920 (5th Cir. Feb. 19, 2003). As a result, this
action arising under the habeas statutes is not properly subject to transfer to the
Eastern District of Louisiana under 28 U.S.C. § 1631.
The court recognizes that if Wess’s habeas application were recharacterized as a motion to vacate his federal sentence filed pursuant to 28 U.S.C.
§ 2255, the sentencing court in the Eastern District of Louisiana would at least
generally have subject-matter jurisdiction over that type of motion. Wess alleges
in his pleading, however, that he previously filed a § 2255 motion in that court in
2002 and had it denied. (Doc. 1 at 3). He also alleges that, in March 2016, he
filed an application in the Fifth Circuit seeking permission to file a second § 2255
motion in the sentencing court, pursuant to 28 U.S.C. § 2255(h), but that court of
appeals denied the application. (Id.) As a result, the sentencing court in the
Eastern District of Louisiana would lack jurisdiction to entertain another § 2255
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motion from Wess. See 28 U.S.C. § 2255(h); Farris v. United States, 333 F.3d
1211, 1216 (11th Cir. 2003); Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir.
1999). In fact, the sentencing court and the Fifth Circuit have also ruled in Wess’s
own case that the former would not have jurisdiction to consider a habeas filing
even if it were deemed a § 2255 motion because it would have been successive.
See Wess, 61 F. App’x at 920. Accordingly, the court has no basis for transferring
this action to the sentencing court pursuant to 28 U.S.C. § 1631 based on a
recharacterization of Wess’s habeas petition as a § 2255 motion. See Barr, No.
1:17-0843-AKK-JEO, Doc. 5 at 6.
Finally, Wess contends that a transfer of his habeas action to the sentencing
court is authorized under 28 U.S.C. § 2241(d). (Doc. 4 at 5). He is again wrong.
That statute authorizes transfers in habeas corpus actions filed by “a person in
custody under the judgment and sentence of a State court,” i.e., State prisoners,
and only then between district courts within the same State in which the petitioner
was convicted. Thus, § 2241(d) has no application to Wess’s habeas petition
challenging his present physical custody, insofar as he is a federal prisoner
seeking a transfer to a district court in a different State. See Dunne v. Henman,
875 F.2d 244, 249 (9th Cir. 1989) (“Section 2241(d) applies when [a state]
prisoner is confined in that state in which he was convicted and sentenced.”);
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Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991) (recognizing that, § 2241(d)
withstanding, “[i]f the petitioner is a federal prisoner, or if the state sentencing
court is in a different state from the prisoner or his custodian, the district court still
must have jurisdiction over the prisoner or his custodian.”); Barr, No. 1:17-0843AKK-JEO, Doc. 5 at 7.
III.
Having carefully reviewed and considered de novo all the materials in the
court file, including the magistrate judge’s Report and Recommendation and the
Petitioner’s Objections thereto, the court is of the opinion that the magistrate
judge’s findings are due to be and are hereby ADOPTED and his recommendation
is ACCEPTED. Petitioner’s Objections are OVERRULED. Petitioner’s motion
to transfer, contained in his Objections (Doc. 4 at 1, 4) is due to be DENIED. As
a result, the petition for writ of habeas corpus is due to DISMISSED WITHOUT
PREJUDICE, for lack of jurisdiction. A separate Final Order will be entered.
DONE and ORDERED this 14th day of August, 2017.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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