Berry v. Warden, FCC Coleman - Medium

Filing 17

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 7/29/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GREGORY BERRY,
Petitioner,
v.

Case No: 5:11-cv-296-Oc-29PRL

WARDEN,
MEDIUM,

FCC

COLEMAN

-

Respondent.
OPINION AND ORDER
Petitioner

Gregory

Berry

(hereinafter

“Petitioner”

or

“Berry”) initiated this action as a federal prisoner incarcerated
at FCC-Coleman by filing a habeas corpus petition pursuant to 28
U.S.C. § 2241 (Doc. #1) and supporting memorandum of law (Doc. #2)
on May 17, 2011.

The petition challenges Berry’s 2001 conviction

of knowing and intentionally distributing more than 50 grams of
crack in violation of 21 U.S.C. § 841(a)(1) entered in the United
States District Court for the Southern District of Florida, for
which he received a life sentence.

Petition at 1; Response at 1.

In the instant Petition, Berry asserts that he is entitled to a
retroactive application of the Fair Sentencing Act of 2010 (“FSA”),
Pub.L. No. 111-220, 124 Stat. 2372 (2010); and, that based on the
penalties set forth in the FSA, he is actually innocent of the
mandatory life sentence set forth in 21 U.S.C. § 841(b) for
offenses involving crack cocaine.

Memorandum at 1.

Respondent filed a response (Doc. #6) moving to dismiss the
Petition for lack of jurisdiction and attached supporting exhibits
including a copy of the criminal docket sheet (Doc. #6-1, Exh. 1,
docket no. 1:01-cr-426-ASG-1 (S.D. Fla.)) and a copy of the civil
docket sheet on Petitioner’s motion to vacate his sentence filed
pursuant to 28 U.S.C. § 2255 (Doc. #6-2, Exh. 2, docket no. 1:04cv-20514-ASG)).

Petitioner filed a Reply (Doc. #9). The Court

directed Respondent to file a supplemental response, see Doc. #12,
based on Bryant v. FCC Coleman Medium, 738 F.3d 1253 (11th Cir.
2013), and attach a copy of the Presentence Investigation Report
(“PSR”).

Respondent

complied

with

the

order,

(supplemental response), Doc. #14 (PSR).
supplemental reply (Doc. #16). 1

see

Doc.

#13

Petitioner filed a

This matter is ripe for review.

Procedural History
A.

Conviction and Direct Appeal

A federal grand jury in the United States District Court for
the Southern District of Florida indicted Berry for “knowing and
intentionally distributing fifty grams or more of a mixture and
substance containing a detectable amount of cocaine which contains

1To

the extent either reply raises arguments not set forth in
either the Petition, or the Memorandum, such arguments are not
properly before the Court. See Herring v. Sec’y Dep’t of Corr.,
397 F.3d 1338 (11th Cir. 2005)(noting that a petitioner’s
“[a]rguments raised for the first time in a reply brief are not
property before the reviewing court.”)(citing United States v.
Coy, 19 F.3d 629, 632, n. 7 (11th Cir. 1994))(other citations
omitted).

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cocaine base, otherwise known as crack.”

Prior to trial, the

United States filed notice of intent to seek enhanced penalties
under

21

U.S.C.

convictions.
of

cocaine

§

851

based

on

Berry’s

Exh. 1 at Docs. #25, #26.
at

issue,

Berry’s

prior

felony

drug

Considering the quantity

unenhanced

statutory

maximums

sentence was life imprisonment, but based on his prior felony drug
convictions, Berry faced a mandatory life sentence.
found Berry guilty as charged.
841(b)(1)(A)(2001).

Exh. 1 at Doc. #46.

The jury
21 U.S.C. §

In accordance with the jury verdict, the

district court sentenced Petitioner to life imprisonment.

Id. at

Doc. #68.
Berry appealed his conviction.

Exh. 1 at Doc. #69.

Berry

argued that the district court committed reversible error by
permitting the Government to present rebuttal evidence beyond the
scope of the defense.
constituted
Amendment.

cruel

Berry also argued that this life sentence

and

unusual

punishment

of

the

Eighth

Id.; see also Exh. 1 at Doc. #82, United States v.

Berry, Case No. 02-13668 (11th Cir. 2003).
Court

under

Appeals

for

conviction and sentence.

the

Eleventh

Circuit

The United States
affirmed

Berry’s

Id. at Doc. #82; United States v. Berry,

Case No. 02-13668 (11th Cir. 2003).
B.

Section 2255 Motion

Berry filed a motion to vacate his sentence pursuant to 28
U.S.C. § 2255.

Exh. 2 at Doc. #83; Exh. 2 at Doc. #1.

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Following

an evidentiary hearing, the district court denied Berry relief.
Id.

at

Doc.

#78.

The

district

court

then

granted

Berry’s

application for a certificate of appealability on the issue of
Berry

received

ineffective

assistance

of

counsel

based

on

counsel’s failure to challenge whether the substance involved in
his offense was crack cocaine.

Id. at Doc. #80; Berry v. United

States, 281 F. App’x 967, 968 (11th Cir. 2008)(unpublished).

The

Eleventh Circuit affirmed the district court’s denial of Berry’s
§ 2255 motion.

Exh. 2 at Doc. #98; Berry, 281 F. App’x at 968.

Berry sought certiorari review with the United States Supreme
Court, which was denied.

Berry v. United States, 129 S. Ct. 476

(2008).
C.

Motion for Application of Sentence Reduction

Berry also filed a motion for retroactive application of
sentencing guidelines to crack cocaine offenses.
#87.

Exh. 1 at Doc.

The district court denied the motion finding Petitioner not

eligible for a sentence reduction because he was subject to a
statutory

mandatory

841(b)(1)(A).

minimum

life

Id. at Doc. #91.

sentence

under

21

U.S.C.

Berry appealed and by order

entered November 14, 2012, the United States Court of Appeals for
the Eleventh Circuit affirmed the district court’s order.

Id. at

Doc. #110; United States v. Berry, Case No. 12-11150 (11th Cir.
2012).

In pertinent part, the appellate court confirmed that

Amendment 750 had no effect on Berry’s initial guidelines range.

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The appellate court further addressed Berry’s argument that he was
entitled to resentencing under the FSA.

Id. at 6.

The appellate

court noted that the FSA does not serve as a basis for a sentence
reduction under § 3582(c)(2).

Further, assuming arguendo that

Berry could bring his FSA claim in a § 3582(c)(2) motion, the
appellate court found that the FSA does not apply retroactively to
Berry’s 2002 sentence.
D.

Id. at 6-9.

Current § 2241 Petition

Petitioner asserts that he is “actually innocent” of his
enhanced sentence pursuant to the FSA.
at

5.

Petitioner

argues

that

his

Petition at 6; Memorandum
prior

§

2255

motion

was

“inadequate and ineffective” to challenge the legality of his
detention; and, therefore, this Court has jurisdiction to hear the
claim under Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).
Petitioner

claims

that

the

FSA

constitutes

a

“retroactively

applicable” law, which was not previously available for him to
assert.

Memorandum at 6, 15.

Petitioner, inter alia, argues that

he was convicted of a “non-existent offense” because now under the
FSA there is no violation based on “50 grams or more” of cocaine.
Id. at 12.
In

response,

Respondent

asserts

that

this

Court

lacks

jurisdiction to considering the instant Petition because the FSA
does not constitute a retroactive, applicable decision of the
United States Supreme Court.

Response at 5.

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Alternatively,

Respondent

asserts

that

even

if

the

FSA

were

retroactive,

Petitioner would still not be “actually innocent” of distributing
crack cocaine.
Petitioner’s

Id.

Respondent further points out that even if

sentence

was

not

enhanced

based

on

his

prior

qualifying drug convictions, Petitioner would have nevertheless
been sentenced to life imprisonment.

Id. at 6.

Analysis
“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

U.S.C.

Cir.

2003);

28

§

2255(f).

Under

limited

circumstances, a federal prisoner may file a habeas petition
pursuant to § 2241.

28 U.S.C. § 2255(e) provides that:

An application for a writ of habeas corpus on
behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this
section, shall not be entertained if it
appears that the application has failed to
apply for relief, by motion, to the court
which sentenced him, or that such court has

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denied him relief, unless it also appears that
the remedy by motion is inadequate or
ineffective to test the legality of his
detention.
Id. (emphasis added to indicate the savings clause).
clause of § 2255(e) is the “savings clause.”

The last

The applicability

of the savings clause is a threshold jurisdictional matter, and
where it is absent, federal courts lack authority to consider the
merits of a petitioner's § 2241 claims.

Williams v. Warden, Fed.

Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013) (citing
Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999)); see also
Bryant v. Warden, FCC Coleman-Medium, 738 F.2d 1253, 1256 (11th
Cir. 2013)(recognizing five requirements a petitioner must meet to
satisfy the savings clause).
2255(e),

Congress

Id. at 1339-40 (“[I]n enacting §

clearly

restricted

the

subject-matter

jurisdiction of the federal courts.”).
Petitioner's previous § 2255 motion was denied by the court
which imposed his sentence.
§

2255

motion

without

Thus, Petitioner may not file another

first

receiving

permission

from

the

appropriate United States Court of Appeals, which Petitioner has
failed to do. 28 U.S.C. § 2255(h); Darby, 405 F.3d at 945 ("[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").

Thus, Petitioner’s only available avenue for

collateral relief in a § 2241 petition is through the savings

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clause.

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).

In Gilbert v. United States,

640 F.3d 1293 (11th Cir. 2011), the Eleventh Circuit Court of
Appeals held that the savings clause “does not authorize a federal
prisoner to bring in a § 2241 petition a claim, which would
otherwise be barred by § 2255(h), that the sentencing guidelines
were misapplied in a way that resulted in a longer sentence not
exceeding the statutory maximum.”

Gilbert, 640 F.3d at 1323.

The

Eleventh Circuit concluded that “for claims of sentence error, at
least where the statutory maximum was not exceeded, the point where
finality holds its own against error correction is reached not
later than the end of the first round of collateral review.”

Id.

at 1312; see also id. at 1295 (holding that a federal prisoner
cannot “use a habeas corpus petition to challenge his sentence .
. . at least where the sentence the prisoner is attacking does not
exceed the statutory maximum.”).
Here, Petitioner was convicted of violating 21 U.S.C. §
841(a)-(b)(1)(B).

Considering the quantity of drugs at issue in

Petitioner’s conviction was 50 grams or more, the statute under
which Petitioner was convicted provided a penalty of not “less
than 10 years or more than life.” His enhanced sentence subjected
him to a mandatory life sentence.

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Thus, Petitioner faced a

statutory maximum penalty of life imprisonment, even before his
prior drug convictions were considered.

Id.

Thus, Petitioner’s

life sentence is not above the statutory maximum.

Consequently,

the savings clause in § 2255(e) does not apply to Petitioner’s
claim and this Court lacks jurisdiction to address his § 2241
petition.

See Gilbert, 640 F.3d at 1312; Chester v. Warden, 552

F. App’x 887, 891 (11th Cir. 2014).
Additionally, Respondent is correct that the FSA does not
constitute retroactive, applicable law set forth by the United
States Supreme Court to open the door to relief under the saving’s
clause.

The Eleventh Circuit agreed in its decision affirming the

district court’s order denying Petitioner’s motion for a sentence
reduction.

Exh. 1 at Doc. #110 at 6-9.

Petitioner’s commission

of the offense and entry of his sentence all occurred prior to the
FSA’s enactment.

Jones v. Warden, FCC-Coleman-Medium, 520 F.

App’x 942, 945 (11th Cir. 2013)(unpublished); see also United
States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), cert.
denied, 131 S. Ct. 1833 (2011).
Because Petitioner fails to show that § 2255’s remedy is
inadequate or ineffective to test the legality of his detention,
the savings clause does not apply to his claims.

Accordingly,

this action is subject to dismissal for lack of jurisdiction.
ACCORDINGLY, it is hereby
ORDERED:

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1.

The Petition is DISMISSED for lack of jurisdiction.

2.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of July, 2014.

SA: alr
Copies: All Parties of Record

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29th

day