Comer v. Warden, FCC Coleman - Low

Filing 15

OPINION AND ORDER re: 1 Petition for writ of habeas corpus is dismissed for lack of jurisdiction. The Clerk is directed to enter judgment accordingly, terminate any pending motions, and close this case. Signed by Judge Sheri Polster Chappell on 12/3/2013. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CHARLES D. COMER,
Petitioner,
v.

Case No: 5:10-cv-622-Oc-38TBS

WARDEN, FCC COLEMAN - LOW,
Respondent.
/
OPINION AND ORDER1
This matter comes before the Court upon review of the file. Charles D. Comer, a
pro se petitioner, initiated this action while incarcerated at FCC Coleman, located in
Coleman, Florida, by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241 (Doc. #1, Petition), under the savings clause of 28 U.S.C. § 2255.

See

generally Petition. Petitioner submitted a memorandum of law (Doc. #3, Memorandum)
in support. Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus for
Lack of Jurisdiction (Doc. #8, Motion). Petitioner filed a Reply (Doc. #9, Reply). For the
reasons herein, the Court finds the Respondent’s Motion should be granted and the
Petition should be dismissed.

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other
documents or Web sites. These hyperlinks are provided only for users’ convenience.
Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER
fees. By allowing hyperlinks to other Web sites, this court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these
third parties or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs
the user to some other site does not affect the opinion of the court.

I. Background
Petitioner was indicted in the Middle District of North Carolina and charged with
conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C. §
841, 846. Petition at 2; Response at 1 (citing United States v. Charles D. Comer, Case
No. 2:95-cr-119-NCT-2 (M.D. N.C. 1995)(hereinafter “Crim. Case”). On May 9, 1995,
the United States filed a notice seeking an enhanced sentence based on Petitioner’s
prior convictions. Crim. Case Doc. #19. The jury found Petitioner guilty. Crim. Case
Doc. #49. Petitioner was sentenced to 292-months imprisonment. Crim. Case Doc.
#78. The sentence was subsequently reduced to 240-months on July 12, 2011. Crim.
Case Doc. #162.
Petitioner appealed and the judgment of the district court was affirmed. Crim.
Case Docs. #86, #109, #110. Petitioner then filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255, asserting ineffective assistance of counsel. Crim. Case
Docs. # 112, #113, #115, #116. The court denied his motion, and Petitioner appealed.
Crim. Case Docs. #126, #123. The certificate of appealability was denied on November
9, 2000. #131, #132. Petitioner filed successive § 2255 motions, which the court also
denied, inter alia for failing to seek permission to file a successive motion from the
Eleventh Circuit. Crim. Case Docs. #133, #137, #142, #144. During the pendency of
the instant action, Petitioner continued to seek relief in his criminal case by again filing a
§ 2255 motion and a motion to reduce his sentence. Crim. Case Docs. #165, #166.
The district court ordered briefing from the Government on the motion to reduce the
sentence.

Crim. Case Doc. #169.

On June 5, 2013, the court ultimately denied

Petitioner’s motion for a sentence reduction. Crim. Case Doc. #187.

-2-

Petitioner initiated the instant action challenging his enhanced sentence on
November 26, 2010. Petitioner asserts that the sentencing range for violating 21 U.S.C.
§ 841, § 846 was 0 to 240 months. Petition at 3. Petitioner argues that he is “actually
innocent” of his enhanced sentence based upon United States v. O’Brien, 560 U.S. 218,
130 S. Ct. 218 (2010) and Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S. Ct. 2577
(2010).

Petitioner also argues that the predicate drug offenses did not constitute

“serious drug offenses” when: (1) he received a 60-day sentence as a result of the drug
conviction; and, (2) the conviction involved 9.2 grams of crack cocaine. See generally
Petition. Thus, Petitioner requests that the Court find him “actually innocent” of his
enhanced sentence. Id. at 6.
Respondent filed a Response (Doc. #8, Response) to the Petition seeking
dismissal of the Petition for lack of jurisdiction.

Respondent attaches case law

supporting its position. Doc. #8-1. In sum, Respondent argues that the instant Petition
is improperly filed under the savings clause and therefore the Court lacks jurisdiction.
Respondent notes that Petitioner already pursued and was denied collateral relief in his
§ 2255 motion, and denied leave to file a successive § 2255 motion. See generally
Response. In Reply, Petitioner asserts that his reliance on the Supreme Court cases
was proper and he can pursue relief under the savings clause because his enhanced
sentence exceeds the statutory maximum. See Reply.
Upon review, the Court agrees with Respondent and will dismiss the Petition as
an improper filing under 28 U.S.C. § 2241 because Petitioner’s challenge to his
sentence is foreclosed by Wofford v. Scott, 177 F.3d 1236, 1238 (11th Cir. 1999). See

-3-

Id., 177 F.3d at 1238 (setting forth three prong test); but see Turner, 709 F.3d 1328,
1333-1334 (11th Cir. 2013)(noting that the Wofford test is dicta); see also Williams v.
Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013)(clarifying the
test set forth in Wofford, 177 F.3d at 1236).
II. Discussion
“Typically collateral attacks on the validity of a federal sentence must be brought
under § 2255.” Darby v. Hawk-Sawyer, 405 F.3d 942, 944-45 (11th Cir. 2005)(per
curiam). When a petitioner has previously filed a § 2255 petition, he must apply for and
receive permission from the appropriate federal circuit court prior to filing a successive
petition. Id. (citing In re Blackshire, 98 F.3d 1293, 1293 (11th Cir. 1996); see also 28
U.S.C. § 2244(b)(3)(A). Additionally, § 2255 motions must be brought in the district
court of conviction and are subject to a one-year statute of limitations.

Sawyer v.

Holder, 326 F.3d 1363, 1365 (11th Cir. 2003); 28 U.S.C. § 2255(f).
Petitioner's previous § 2255 motion was denied by the court which imposed his
sentence. Thus, Petitioner may not file another § 2255 motion without first receiving
permission from the appropriate United States Court of Appeals, which Petitioner has
failed to do. 28 U.S.C. § 2255(h); Darby v. Hawk–Sawyer, 405 F.3d 942, 945 (11th Cir.
2005)("[w]hen a prisoner has previously filed a § 2255 motion to vacate, he must apply
for and receive permission . . . before filing a successive § 2255 motion"). Petitioner
attempts to circumvent this requirement by filing a petition under the “savings clause” of
§ 2255. The savings clause of § 2255 permits a federal petitioner to file a § 2241
petition if the petitioner can establish that § 2255 “is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).

-4-

It is clear that Petitioner no longer has any remedies available under § 2255, so
he files the Petition under § 2241.

According to Eleventh Circuit precedent, the

circumstances under which a federal prisoner may invoke relief pursuant to § 2241 are
limited to specific instances set forth in the “savings clause” of § 2255. Wofford v. Scott,
177 F.3d at 1245. A prisoner may not use the savings clause simply to circumvent the
restrictions on filing a second or successive motion. Id. The Williams court interpreted
Wofford as establishing two necessary conditions for a sentencing claim to pass muster
under the saving’s clause:

First, the claim must be based upon a retroactively

applicable Supreme Court decision. The second, and equally important, condition is the
Supreme Court decision must have overturned a circuit precedent that squarely
resolved the claim so that the petitioner had no genuine opportunity to raise it at trial, on
appeal, or in his first § 2255 motion. Id. at 1343 (citing Wofford, 177 F.3d at 1245).
Even then, the Eleventh Circuit expressly refused to say whether such a showing would
be sufficient to open a portal to § 2241.

Id.

(Wofford’s holding established two

necessary conditions—although it does not go as far as holding them to be sufficient—
for a sentencing claim to pass muster under the saving’s clause). This threshold
showing is a jurisdictional requirement, and where it is absent, federal courts lack
authority to consider the merits of a petitioner's § 2241 claims. Id. at 1338.
Petitioner cannot satisfy either requirement. Although Petitioner cites to two
United States Supreme Court cases, Carachuri-Rosendo and Obrien, the Court finds
that these cases are inapposite. The Carachuri-Rosendo decision involved removal
proceedings under the Immigration and Nationality Act. See generally Carachuri, 130
S. Ct. at 2580-82.

The Supreme Court’s holding in Carachuri, with respect to the

-5-

removal proceedings, was that “when a defendant has been convicted of a simple
possession offense that has not been enhanced based on the fact of a prior conviction,
he has not been ‘convicted’ under § 1229b(a)(3) of a ‘felony punishable’ as such ‘under
the Controlled Substances Act,” 18 U.S.C. 924(c)(2).” Id. at 2589. Accordingly, the
Carachuri case does not change any sentencing enhancement Petitioner received
during sentencing.
In O’Brien, the Supreme Court held that, for purposes of mandatory minimum
sentencing under 18 U.S.C. § 924(c)(1)(B)(ii), the use of a machine gun in a crime is an
element to be proved to a jury beyond a reasonable doubt, not a sentencing factor to be
proved to the judge at sentencing. O’Brien, 130 S. Ct. at 2180. Petitioner suggests,
based on O’Brien, that the quantity of cocaine in his possession should have been a
question for the jury. Petitioner, however, points to no case law stating that the quantity
of drugs for which he stands convicted is a question for the jury. And, the Court finds
the O’Brien case inapplicable to Petitioner’s case.
Even if Carachuri-Rosendo and O’Brien cases were applicable to Petitioner’s
situation, Petitioner points to no case law that establishes that these cases should be
applied retroactively, which is the first, requisite element to open the portal. Nor is the
Court aware of any such precedent. To the contrary, there is case law finding that
these cases are not retroactive. See e.g. Trice Bey v. Warden, FCI Bennettsville, South
Carolina, 511 F. App’x 941 (11th Cir. 2013)(explaining that the Supreme Court did not
make Carachuri-Rosendo retroactive to cases on collateral review); Navarro v. United
States, Case No. 8:11-cv-1152-T-24MAP, 2011 WL 2562480 *2 (M.D. Fla. June 28,
2011)(finding O’Brien does not apply retroactively)(citing United States v. Smith, 1:90-

-6-

CR-01036-MP-CRJ, 2011 WL 2006342 (N.D. Fla. May 23, 2011); Oharo v. Wells, CV
310-086, 2010 WL 5625387 (S.D. Ga. Jan. 19, 2011)); see also Daniel v. Hayes, Case
No. CV210-118, 2011 WL 3444337, *3-*4 (S.D. Ga. July 6, 2011)(dismissing § 2241
petition raising claim under Carachuri-Rosendo for failure to satisfy Wofford
requirements). “A new rule is not ‘made retroactive to cases on collateral review’ unless
the Supreme Court holds it to be retroactive.” Navarro, 2011 WL 2562480 *2 (citing
Tyler v. Cain, 533 U.S. 656, 663 (2001)). Since the Court concludes that these cases
are inapposite and/or not retroactive, Petitioner cannot meet the first prong of Wofford.
Further, nothing precluded Petitioner from raising this argument, on appeal, or in
his first § 2255 motion. In Wofford, the Eleventh Circuit stated that all that is required
under 28 U.S.C. § 2255(e) is that a petitioner have had an “unobstructed procedural
shot” at getting his sentence vacated. Wofford, 177 F.3d at 1244. “That does not mean
he took the shot, or even that he or his attorney recognized the shot was there for the
taking. All the Constitution requires, if it requires that much, is that the procedural
opportunity have existed.” Id.; see also Turner v. Warden, Coleman FCI, 709 F.3d 1328
(11th Cir. 2013)(holding that § 2255(e)'s savings clause did not cover federal habeas
petitioner's claim, because it could have been raised in an earlier § 2255 proceeding).
Because circuit precedent did not foreclose this claim, Petitioner’s first § 2255 motion
was not inadequate or ineffective to raise the instant sentencing claim. Accordingly, the
savings clause provision of § 2255(e) does not apply to this petition.
In sum, Petitioner cannot satisfy either prong of the Wofford test, therefore the
savings clause of § 2255(e) does not apply. Petitioner's collateral attack on his federal

-7-

conviction must be treated as a § 2255 petition. However, Petitioner has previously filed
a § 2255 petition. Thus, the instant action is successive and the Court lacks jurisdiction.
Accordingly, it is hereby
ORDERED :
1.

Respondent’s Motion (Doc. #8) is GRANTED. The Petition is dismissed for

lack of jurisdiction.
2. The Clerk is directed to enter judgment accordingly, terminate any pending
motions, and close this case.
DONE and ORDERED in Fort Myers, Florida on this 3rd day of December, 2013.

SA: alr
Copies: All Parties of Record

-8-