Barr v. Fernander

Filing 5

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 06/20/2017. (KBB)

FILED
2017 Jun-20 AM 10:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

ACTING WARDEN FERNANDER,
Respondent.

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Civil Action Number:
1:17-cv-00843-AKK-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 Maurice Barr, pro se, a federal prisoner
at the Federal Correctional Institution in Talladega, Alabama. Doc. 1. In his petition,
Barr challenges his 1997 sentence imposed by the United States District Court for the
Northern District of Mississippi, after Barr pleaded guilty to federal drug charges. Id.
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. Barr 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, Barr 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 § 4129-139, 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 habeas jurisdiction to
claims by federal prisoners, like Barr, who contend they were improperly sentenced
under the Guidelines, but still within the statutory maximum for their offenses. 640
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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.
Barr objects to the R&R, arguing that the magistrate judge failed to discuss
whether the Supreme Court’s decision in Mathis is retroactively applicable to cases
on collateral review. Citing a host of lower federal court decisions from outside the
Eleventh Circuit, Barr also suggests that there exists “a circuit split on the appropriate
remedy” for a claim based on Mathis. Doc. 4 at 1. Ultimately, he 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.
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Unfortunately for Barr, 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. In short, this court must follow Gilbert and McCarthan regardless
of whether 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.”).
B.
In the alternative, Barr moves the court to, in lieu of dismissing his habeas
petition for lack of jurisdiction, transfer the action to the federal district court that
sentenced him, in the Northern District of Mississippi. 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.

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§ 1631.1 However, to the extent that Barr’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 Barr is incarcerated in the Northern District of Alabama,
the federal district court for the Northern District of Mississippi would lack
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 Barr as much. See Barr v. United States, 61 F. App’x

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In support of his motion for a transfer to the sentencing court, Barr 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 statute
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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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 Northern District of Mississippi
under 28 U.S.C. § 1631.
The court recognizes that if Barr’s habeas application were re-characterized as
a motion to vacate his federal sentence filed pursuant to 28 U.S.C. § 2255, the
sentencing court in the Northern District of Mississippi would at least generally have
subject-matter jurisdiction over that type of motion. Barr alleges in his pleading,
however, that he previously filed a § 2255 motion in that court and had it denied as
untimely in December 2000. Doc. 1 at 3. As a result, that court would lack
jurisdiction to entertain another § 2255 motion from Barr unless he first were to
obtain an authorizing order from the Fifth Circuit Court of Appeals, something he
does not allege. 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 Barr’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 Barr, 61 F.
App’x at 920. Accordingly, there is no basis for transferring this action to the
sentencing pursuant to 28 U.S.C. § 1631 based on a recharacterization of Barr’s
habeas petition as a § 2255 motion.
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Finally, Barr 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. 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 Barr’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.”); 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.”).
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
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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 be DISMISSED WITHOUT
PREJUDICE, for lack of jurisdiction. A separate Final Order will be entered.
DONE, this 20th day of June, 2017.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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