Morales v. Warden, FCC Coleman - Medium
Filing
10
OPINION AND ORDER dismissing 1 Petition for writ of habeas corpus for lack of jurisdiction. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 12/4/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GEORGE MORALES
Petitioner,
v.
Case No: 5:11-cv-72-Oc-29PRL
WARDEN, FCC COLEMAN MEDIUM,
Respondent.
OPINION AND ORDER
This matter comes before the Court upon review of the file.
George Morales, 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.
Response
dismiss
Reply).
should
(Doc.
the
See generally Petition.
#6,
Response)
Petition.
to
the
Petitioner
Respondent filed a
Petition
filed
a
and
Reply
moves
(Doc.
to
#7,
For the reasons herein, the Court finds the Petition
be
dismissed
for
lack
of
jurisdiction
because
it
constitutes an improper § 2255 motion.
I.
Background
Petitioner was indicted in the Southern District of Florida
for conspiring to distribute 100 or more marijuana plants in
violation of 21 U.S.C. § 846 (Count 1), and distributing 100 or
more
marijuana
plants
841(a)(1)(Count 2).
in
violation
of
21
U.S.C.
§
Response at 1 (citing case number 1:04-cr-
20532 (S.D. Fla. 2004) (hereinafter “Crim. Case”)); see also
United States v. Morales, Case No. 05-13904, 2006 WL 940643
(11th Cir. 2006)(unpublished).
Petitioner plead guilty to Count
1 and the Government dropped Count 2 pursuant to a written plea
agreement.
Crim. Case Docs. #62, #67.
On June 30, 2005, the
Southern District sentenced Petitioner to 141 months in prison
and 5 years supervised release.
2006 WL 940643 *3.
guidelines range.
Crim. Case Doc. #82; Morales,
This sentence was at the low-end of the
Morales, *3.
Petitioner pursued a direct appeal on the basis that his
sentence was unreasonable and that it violated Apprendi v. New
Jersey, 530 U.S. 466 (2000), because his sentence was enhanced
based
on
indictment
prior
and
convictions
that
he
had
that
not
had
not
admitted.
United States v. Morales, 2006 WL 940643.
been
alleged
Response
in
at
an
1-2;
The United States
Court of Appeals for the Eleventh Circuit affirmed Petitioner’s
conviction and sentence.
Crim. Case Doc. #94; United States v.
Morales, 2006 WL 940643,
Petitioner
then
filed
a
motion
to
vacate
his
sentence
pursuant to 28 U.S.C. § 2255, raising two grounds of ineffective
assistance of counsel.
Crim. Case Docs. #96; see also Case No.
- 2 -
07-cv-22807
(S.D.
Fla.
2007)(hereinafter
court denied his § 2255 motion.
Case Doc. #11, #15.
“Civil
Case”).
The
Crim. Case Doc. #100; Civil
Petitioner then sought leave to file a
successive § 2255 motion in the Eleventh Circuit on the basis
that he is actually innocent of his career-offender enhancement
pursuant to Chambers v. United States, 555 U.S. 122, 129 S. Ct.
687 (2009).
The Eleventh Circuit found that Chambers was not
retroactive and denied Petitioner’s motion on February 5, 2010.
See Petition at 10-12.
Petitioner
similar
2011.
then
challenges
initiated
to
his
the
enhanced
instant
sentence
action
on
raising
February
16,
Similar to the arguments Petitioner raised in his motion
for leave to file a successive § 2255 motion, Petitioner argues
that he is actually innocent of his enhanced sentence based upon
Chambers, 555 U.S. at 122, and adds Johnson v. United States,
130 S. Ct. 1265 (2010).
Petition at 3, 8.
Petitioner raises
four challenges to his enhanced sentence, but essentially takes
issue with one of his prior robbery convictions, case number
F91-39646, and argues that the conviction was improperly relied
upon to enhance his sentence, because it did not qualify as a
crime of violence.
Accordingly, Petitioner requests that the
Court resentence him without the career-offender enhancement.
Id. at 6.
- 3 -
Respondent filed a Response the Petition seeking dismissal
of the Petition pursuant to Gilbert v. United States, 640 F.3d
1293 (11th Cir. 2011)(en banc).
In pertinent part, Respondent
argues that the instant Petition is improperly filed under the
savings
clause.
Respondent
notes
that
Petitioner
already
pursued and was denied collateral relief in his § 2255 motion,
and
denied
leave
to
generally Response.
file
a
successive
§
2255
motion.
See
In Reply, Petitioner asserts that he is
entitled to relief under the “Suspension Clause” and further
asserts that the Respondent apparently concedes that his prior
conviction for robbery that was used to enhance his sentence no
longer qualifies as a crime of violence under Johnson, because
Respondent does not address his claim.
See Reply.
Upon review, the Court 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 Id. at 1238 (setting
forth three prong test); but see Turner, 709 F.3d 1328, 13331334 (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).
- 4 -
II. Discussion
“Typically collateral attacks on the validity of a federal
sentence must be brought under § 2255.”
405
F.3d
942,
944-45
(11th
Cir.
Darby v. Hawk-Sawyer,
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 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
- 5 -
establish
that
§
2255
“is
inadequate
or
ineffective
to
detention.”
test
the
legality
of
his
28 U.S.C. § 2255(e).
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
saving’s
for
a
clause:
sentencing
First,
claim
the
to
claim
pass
must
muster
be
under
based
retroactively applicable Supreme Court decision.
the
upon
a
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
- 6 -
showing is a jurisdictional requirement, and where it is absent,
federal
courts
lack
authority
petitioner's § 2241 claims.
to
consider
the
merits
of
a
Id. at 1338.
Petitioner cannot satisfy either requirement.
Petitioner
relies on Chambers and Johnson to argue that the district court
improperly sentenced him as a career offender because one of his
prior robbery convictions was not a violent felony.
Initially,
the Court notes that the Eleventh Circuit already refused to
grant
Petitioner
leave
to
file
a
successive
§
2255
motion
finding that Chambers was not a new rule of constitutional law
made
retroactive
to
cases
on
collateral
review,
previously unavailable. See Petition at 10-12.
that
was
Additionally,
Petitioner cannot demonstrate that Johnson is retroactive and
the Court finds otherwise. “[A] new rule is not made retroactive
to cases on collateral review unless the Supreme Court holds it
to be retroactive.”
Tyler v. Cain, 533 U.S. 656, 663 (2001)
(internal quotation marks omitted); In re Joshua, 224 F.3d 1281,
1283 (11th Cir. 2000) (“For a new rule to be retroactive, the
Supreme Court must make it retroactive to cases on collateral
review.”).
does
not
An examination of the Court's opinion in Johnson
indicate
collateral review.
that
it
was
made
retroactive
to
cases
on
Johnson does not use the word “retroactive,”
let alone discuss application to cases of collateral review.
See In re Patterson, Case No. 10-13445-D, 2010 U.S. App. LEXIS
- 7 -
26606 at *3 (11th Cir. Aug. 12, 2010) (“In Johnson, the Supreme
Court did not discuss the applicability of its ruling as to
retroactivity on collateral review and, thus, did not explicitly
make the case retroactive on collateral review.”).
See also
Hodges v. Warden, FCC Coleman USP I, Case No. 5:10-cv-369-Oc10TBS, 2012 WL 1094070 at *3 (M.D. Fla. Apr. 2, 2012)(finding
Johnson not retroactive); Kilgore v. United States, Case No.
8:10-cv-1973-T-24TBM, 2012 WL 2087415 at *1 (M.D. Fla. June 8,
2012); Hill v. United States, Case No. 3:11-cv-196-J-37TEM, 2011
WL
1110057
at
*4
(Apr.
3,
2012)(finding
Johnson
not
retroactive); Berryhill v. United States, Case No. 8:11-cv-444T-30MAP,
2011
2011)(finding
WL
4502064
the
Johnson
at
*1
case
(M.D.
“a
Fla.
case
of
Sept.
28,
statutory
interpretation, not a creation of a new right.”); Jackson v.
United States, Case No. 8:10-cv-2000-T-27TBM, 2011 WL 4005291 at
*7 (M.D. Fla. Sept. 8, 2011)(finding no binding precedent to
apply Johnson retroactively); Crawford v. United States, Case
No. 8:11-cv-1866-T-30TGW, 2011 WL 3702664 at *2 (M.D. Fla. Aug.
23, 2011)(stating no statement from Supreme Court and no binding
Eleventh Circuit precedent requiring retroactive application);
Rogers v. United States, Case No. 8:10-cv-1873-T-27EAJ, 2011 WL
3625623 at *2 (M.D. Fla. Aug. 17, 2011)(same); Hires v. United
States,
Case
No.
8:11-Cv-388-T-30TGW,
2011
WL
3566701
at
*2
(M.D. Fla. Aug. 12, 2011)(finding “Johnson did not recognize a
- 8 -
new right.”); McGowan v. United States, Case No. 8:10-CV-2526-T30EAJ, 2011 WL 2470168 at *2 (M.D. Fla. June 21, 2011)(stating
“[n]othing in the Johnson decision indicates that the Supreme
Court intended for the holding to apply retroactively.”); Tarver
v. United States, Case No. 8:10–CV–2529–T–30MAP, 2011 WL 2970089
at
*2
(M.D.
concludes
Fla.
that
June
Chambers
20,
2011)(same).
and
Johnson
are
Since
not
the
Court
retroactive,
Petitioner cannot meet the first prong of Wofford.
Further,
nothing
precluded
Petitioner
from
raising
argument, on appeal, or in his first § 2255 motion.
this
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.
F.3d at 1244.
Wofford, 177
“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
- 9 -
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, so the savings clause of § 2255(e) does not apply.
Petitioner's collateral attack on his federal conviction must be
treated as a § 2255 petition. However, Petitioner has previously
filed a § 2255 petition and his motion for leave to file a
successive § 2255 motion was denied.
Thus, the instant action
is successive and the Court lacks jurisdiction.
Accordingly, it is hereby
ORDERED:
1.
The
Petition
(Doc.
#1)
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
of December, 2013.
SA: alr
Copies: All Parties of Record
- 10 -
4th
day
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