Green v. USA

Filing 14

OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255) for lack of jurisdiction. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:12-cr-5-FTM-29CM), and close the civil file. A certificate of appealability is denied. Signed by Judge John E. Steele on 8/2/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JEFFREY R. GREEN,
Petitioner,
v.

Case No: 2:17-cv-16-FtM-29CM
Case No. 2:12-CR-5-FTM-29CM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#429) 1 filed on January 11, 2017, through counsel.

Petitioner

also filed a Memorandum and Brief in Support (Doc. #2) and a
Supplemental

Memorandum

and

Brief

in

Support

(Cv.

#5).

The

government filed a Response in Opposition to Motion (Cv. Doc. #8)
on March 23, 2017. The petitioner filed a Reply in Support (Cv.
Doc. #9) on April 5, 2017.
I.
On July 24, 2013, a federal grand jury in Fort Myers, Florida
returned an eight-count Superseding Indictment (Cr. Doc. #89)

1The

Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

charging

petitioner

and

his

co-defendant

in

Count

One

with

conspiracy to possess with intent to distribute, and to distribute
Oxycodone, Alprazolam, and Diazepam outside the usual course of
professional
purposes.

practice

and

for

other

than

legitimate

medical

In Count Two, defendant was charged with conspiracy to

commit the substantive money laundering offenses enumerated in
Counts Three through Eight.

The Superseding Indictment contained

a forfeiture provision whereby one of the identified assets was
real property located at 12900 Eagle Road, Cape Coral, Florida.
Petitioner proceeded to trial, and the jury returned a verdict
of guilty on all counts.

(Cr. Doc. #231.)

On January 7, 2015,

the Court sentenced petitioner to a term of imprisonment of 84
months as to each count, to be served concurrently, and a term of
supervised release.

(Cr. Doc. #370.)

On January 8, 2015, the

Court granted the government’s preliminary order of forfeiture as
to certain assets, including the real property located at 12900
Eagle Road, Cape Coral, Florida.

(Cr. Doc. #376.)

Judgment (Cr.

Doc. #378) was also filed on January 8, 2015, which includes a
total forfeiture amount of $4,918,603.36, jointly and severally as
to petitioner and his co-defendant.
Petitioner filed a Notice of Appeal (Cr. Doc. #385) on January
16, 2015, and the government filed a Notice of Cross-Appeal (Cr.

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Doc. #396) 1.

On April 7, 2016, the Eleventh Circuit affirmed

finding sufficient evidence to sustain the convictions.
#415.) 2

(Cr. Doc.

On November 10, 2016, the Final Judgment of Forfeiture

(Cr. Doc. #419) was issued and all rights, title, and interests in
$347,423.56 of equity in the aforementioned real property was
forfeited

to

the

United

States

for

disposition.

More

specifically, the Final Judgment provides that any remaining net
proceeds of the sale of the real property up to $347,423.56 would
be forfeited to the United States, with any remaining net proceeds
in excess of this amount to be returned to defendant.
was

vested

in

the

United

States

by

the

Final

Clear title
Judgment

of

Forfeiture.
On November 11, 2016, petitioner filed an Emergency Motion to
Reconsider or Clarify Final Judgment of Forfeiture (Cr. Doc. #420).
On January 17, 2017, the Court issued an Opinion and Order (Cr.
Doc. #430) granting reconsideration but otherwise denying the
emergency motion noting that petitioner could have appealed the
forfeiture but failed to do so.

On January 11, 2017, petitioner

filed a Petition for Writ of Error Coram Nobis (Cr. Doc. #427)
seeking to have the Final Order of Forfeiture vacated.

The Court

The cross-appeal was voluntarily dismissed effective July 7,
2015. (Cr. Doc. #412.)
1

2

United States v. Green, 818 F.3d 1258 (11th Cir. 2016).

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denied this motion, and an Emergency Motion to Stay Forfeiture and
Eviction on January 17, 2017.

(Cr. Doc. #431; Cr. Doc. #432.)

Petitioner filed his motion seeking relief under § 2255 on
January 11, 2017.

(Cr. Doc. #429.)
II.

Petitioner

raises

one

ground

for

relief:

counsel

was

ineffective for failing to clarify the record as to whether the
government would be able to force the sale of petitioner’s home
when only $347,423.50 was subject to forfeiture.

Petitioner

argues that forfeiture of his entire residence would be excessive
under all circumstances.

The government argues that the motion

should be dismissed because the claim is not cognizable, and is
procedurally defaulted.

In reply, petitioner concedes that he

could have filed an appeal but argues that the appeal was not filed
based on counsel’s ineffectiveness in not realizing that the
preliminary forfeiture meant the government would sell the real
property.

Petitioner filed a Notice (Cv. Doc. #13) indicating

that he has been able to secure a loan on the real property to
satisfy the forfeiture amount, however this has no bearing on the
§ 2255 ground for relief.
III.
Where an issue which could have been raised on appeal is not
pursued, it will not be considered in a § 2255 proceeding absent
a showing of cause and actual prejudice from the errors of which

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she complains, or actual innocence.

Bousley v. United States, 523

U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152, 16768 (1982); Mills, 36 F.3d at 1055.
A prisoner in custody under sentence of a
court established by Act of Congress claiming
the right to be released upon the ground that
the sentence was imposed in violation of the
Constitution or laws of the United States, or
that the court was without jurisdiction to
impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may
move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added).

The Eleventh Circuit has

clearly stated that a § 2255 petition cannot be used for the sole
purpose of attacking fines or restitution if the petitioner is not
seeking release from illegal or improper custody.

Mamone v.

United States, 559 F.3d 1209, 1211 (11th Cir. 2009) (citing Blaik
v.

United

States,

161

F.3d

1341,

1343

(11th

Cir.

1998)).

“Likewise, a challenge to forfeiture is not cognizable in a § 2255
proceeding” for the same reason.

Olivos v. United States, No.

6:12-CR-288-ORL-31KRS, 2017 WL 2292973, at *3 (M.D. Fla. May 23,
2017).
Because

a

successful

challenge

to

the

Final

Order

of

Forfeiture would in no part relieve petitioner from his physical
confinement, § 2255 is not the proper vehicle to seek non-custodial
relief that is otherwise barred.

Arnaiz v. Warden, Fed. Satellite

Low, 594 F.3d 1326, 1329 (11th Cir. 2010); United States v. Harris,

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546 F. App'x 898, 901 (11th Cir. 2013).

The Court need not reach

the issue of cause or prejudice because petitioner’s claim is
simply not cognizable by habeas corpus.

The petitioner will be

dismissed for lack of jurisdiction.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #429) is DISMISSED for lack of
jurisdiction.
2.

The Clerk of the Court shall enter judgment accordingly

and close the civil file.

The Clerk is further directed to place

a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) IS DENIED.

A prisoner

seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition.

28 U.S.C. §

2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009).

“A [COA]

may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

To make such a showing, Petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004), or that “the issues presented

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were

adequate

to

deserve

Cockrell,

encouragement

537

U.S.

322,

to
336

proceed

further,”

Miller-El

v.

(2003)(citations

omitted).

Petitioner has not made the requisite showing in these

circumstances.
DONE and ORDERED at Fort Myers, Florida, this
August, 2017.

Copies:
Petitioner
AUSA

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2nd

day of