Hardy v. Warden, FCC Coleman - USP I

Filing 13

ORDER OF DISMISSAL dismissing 1 Petition for writ of habeas corpus as an improper filing under § 2241. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 11/18/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
AVERY HARDY,
Petitioner,
v.

Case No:

5:11-cv-523-Oc-29PRL

WARDEN, FCC COLEMAN.USP I,
Respondent
____________________________/
ORDER OF DISMISSAL
This case is before the Court upon review of Avery Hardy’s
(“Petitioner's”)
U.S.C.

§

2241

habeas
(Doc.

corpus

1).

petition

Petitioner

filed
is

an

pursuant
inmate

to

28

currently

confined at the Federal Correctional Institution in Berlin, New
Hampshire.1

He brings this action to challenge the life sentence

imposed

the

by

United

States

District

Court

for

the

Middle

District of Georgia in his 2005 conviction for possession of more
than fifty grams of crack cocaine with the intent to distribute
(M.D. Ga. Case No. 1:05-cr-22-WLS).

1

At the time this action was filed, Petitioner was
incarcerated at the Federal Correctional Institution in Coleman,
Florida. Accordingly, venue is proper. See 28 U.S.C. § 2241(d);
Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 1991)
(recognizing that motions made pursuant to § 2241 must be brought
only in the district court for the district in which the inmate is
incarcerated). If a district court properly acquires jurisdiction
when a case is filed, the petitioner’s subsequent removal to
another
judicial
circuit
does
not
destroy
the
court’s
jurisdiction. Rumsfield v. Padilla, 542 U.S. 426, 439 (2004).

Petitioner

argues

that

the

district

court

did

not

have

jurisdiction to sentence him to a mandatory life sentence because
the “Government’s 851 notice does not state in writing two ‘felony
drug

offenses’

of

the

petitioner

jurisdiction defect.” (Doc. 1 at 3).

[sic]

which

constitute[s]

a

Respondent asserts that this

Court lacks jurisdiction to consider this § 2241 petition (Doc.
6).

Respondent also argues that the petition should be denied for

lack of merit.

Id.

After consideration of the issues and the pleadings filed in
this case, the Court dismisses the petition as an improper filing
under 28 U.S.C. § 2241.
I.
On

Background
October

5,

2005,

a

jury

found

Petitioner

guilty

of

possession of more than fifty grams of crack cocaine with the
intent to distribute it, in violation of 21 U.S.C. §§ 841(a) and
(b)(1)(A)(iii) (Doc. 6-1 at 6).
an

unenhanced

maximum

sentence

U.S.C. § 841(b)(1)(A).

Petitioner's conviction carried
of

life

imprisonment.

See

21

However, because, prior to trial, the

United States filed an information pursuant to 21 U.S.C. § 851 (“§
851 notice”), notifying Petitioner of its intent to seek enhanced
penalties

based

offenses,

he

imprisonment.

upon

faced

his
a

prior

convictions

statutory

minimum

for

felony

sentence

of

drug
life

See Doc. 6-1 at 5; Doc. 6-2 at 2; 21 U.S.C. §
2

841(b)(1).

On January 12, 2006, Petitioner was sentenced under 21

U.S.C. § 841(b)(1) to a mandatory term of life imprisonment.

Id.

Petitioner filed a direct appeal of his conviction, and the
Eleventh Circuit affirmed, noting that “the entire record reveals
no arguable issues of merit[.]”

United States v. Hardy, 209 F.

App’x 906, 906 (11th Cir. 2006).
On September 25, 2008, Petitioner filed a motion to vacate
his sentence pursuant to 28 U.S.C. § 2255, in which he raised
claims of ineffective assistance of counsel and Fourth Amendment
violations (Doc. 6-1 at 9).
v.

United

States,

Case

No.

The § 2255 motion was denied.
1:08-cv-90027-WLS,

2008

WL

Hardy
8126040

(M.D. Ga. Oct. 14, 2008).
Petitioner

filed

the

instant

petition

and

a

supporting

memorandum of law on September 8, 2011 (Doc. 1; Doc. 2).

In the

petition, he argues that the Government’s § 851 notice improperly
listed one of his prior drug offenses as “possession of marijuana
with the intent to distribute” while the plea colloquy establishes
that he was actually convicted of felony possession of marijuana
(Doc.

1

at

9).

Petitioner

argues

that

mere

possession

of

marijuana is not a felony under 21 U.S.C. §§ 802(44), 841(b)(1)(A)
and 851(a)(1).

Id.

Respondent contends that Petitioner cannot bring this claim
in a § 2241 petition because it is not based upon a retroactively
3

applicable Supreme Court decision, and it “is a garden-variety
challenge to the sufficiency of the section 851 notice in his case
which

[Petitioner]

appeal.”

should

(Doc. 6 at 8).

have

made

—

if

at

all

—

on

direct

Respondent also argues that Petitioner's

claim fails on the merits because “possession of an unspecified
quantity of marijuana is a felony under Georgia law.”
II.

Id.

Analysis

Petitioner has styled this action as a petition for writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241, which provides a
means for a prisoner to challenge the execution of his sentence.
Here, however, Petitioner challenges the validity of his sentence
because he claims the district court lacked jurisdiction to give
him

an

enhanced

sentence.

Ordinarily,

an

action

in

which

an

individual seeks to collaterally attack his conviction or sentence
should

be

conviction.

filed

under

28

U.S.C.

§

2255

in

the

district

of

28 U.S.C. § 2255(a); Sawyer v. Holder, 326 F.3d 1363,

1365 (11th Cir. 2003).

However, because Petitioner's previous §

2255 motion was denied by the court that imposed his sentence,
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
4

apply for and receive permission . . . before filing a successive
§ 2255 motion").
Because

Petitioner

is

barred

from

filing

another

§

2255

motion, he filed this petition for habeas corpus relief pursuant
to 28 U.S.C. § 2241.

Although 28 U.S.C. § 2255(e) expressly

limits the circumstances under which a § 2241 motion may be filed,
Petitioner asserts that he properly filed this motion under § 2241
because

the

Supreme

Court’s

decision

in

Carachuri-Rosendo

v.

Holder, 130 S. Ct. 2577 (2010) establishes that the Government’s
defective

§

851

notice

meant

challenge his prior convictions.

that

he

had

no

opportunity

to

Therefore, Petitioner argues, he

should not have been subject to a mandatory life sentence (Doc. 2
at 3-4).

Petitioner claims that he was foreclosed from raising

this issue earlier by Perez v. United States, 249 F.3d 1261 (11th
Cir. 2001) (Doc. 7 at 4).
a.

The savings clause provision of 28 U.S.C. § 2255(e)
has limited application to sentencing claims

Under § 2255(e)'s savings clause, a prisoner may file a §
2241 petition if an otherwise available remedy under § 2255 is
inadequate or ineffective to test the legality of his detention.
Specifically, § 2255(e) provides as follows:
An application for a writ of habeas corpus in
behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this
5

section, shall not be entertained if it
appears that the applicant has failed to apply
for relief, by motion, to the court which
sentenced him, or that such court has denied
him relief, unless it also appears that the
remedy by motion is inadequate or ineffective
to test the legality of his detention.
28

U.S.C.

§

2255(e)

(emphasis

added).

Where,

as

here,

a

petitioner challenges only a “fundamental defect in sentencing,”
he must establish two necessary conditions before he may invoke §
2255(e)’s

saving

retroactively

clause:

applicable

(1)

the

Supreme

claim
Court

must

be

decision;

based
and

upon
(2)

a

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.

Williams

v.

Warden,

Federal

Bureau

of

Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013)(modifying the test
set forth in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999)).2

2

Both Petitioner and Respondent rely on Wofford v. Scott as
providing the Eleventh Circuit’s appropriate “savings clause”
test.
In Wofford, the Eleventh Circuit interpreted the savings
clause provision of § 2255(e) to mean that the clause applies to
open a portal to § 2241 review when: (1) a claim is based upon a
retroactively applicable Supreme Court decision; (2) the holding
of the Supreme Court decision establishes that the petitioner was
convicted for an offense that is now nonexistent; and (3) circuit
law squarely foreclosed such a claim at the time it otherwise
should have been raised in the trial, appeal, or first § 2255
motion. 177 F.3d at 1244.
6

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.
b.

Petitioner

Williams, 713 F.3d at 1338.

Petitioner has not identified a retroactively
applicable United States Supreme Court decision
that opens the door to § 2241 review
argues

that

the

Government’s

§

851

notice

was

defective because it incorrectly described his felony possession
conviction as “possession with intent to distribute” (Doc. 1 at 9,
18).

Petitioner

points

to

Carachuri-Rosendo

v.

Holder

as

a

retroactively applicable Supreme Court decision establishing that
a defective § 851 notice forecloses the ability of the district

In an en banc decision in 2011, however, the Eleventh Circuit
explained that the three-pronged Wofford test was “only dicta,”
and clarified that the actual holding in Wofford was “simply that
the savings clause does not cover sentence claims that could have
been raised in earlier proceedings.” Gilbert v. United States, 640
F.3d 1293, 1319 (11th Cir. 2011). The three-pronged Wofford test
has not been overturned or rejected by the Eleventh Circuit in
cases where a petitioner claims that he is actually innocent of
the underlying crime for which he is currently imprisoned.
Williams, 713 F.3d 1332 (11th Cir. 2013).
Petitioner asserts that he is actually innocent of the
sentence enhancement and that the Court’s judgment against him is
void (Doc. 2 at 6). However, he does not assert that he is
actually innocent of his federal convictions or of his underlying
prior drug convictions.
Rather, he is asserting only legal
innocence: that the district court should not have determined that
his prior conviction for possession of marijuana was a felony.
Accordingly, Williams, not Wofford, provides the legal test under
which to evaluate whether § 2255(e)’s savings clause opens a
portal to § 2241 review of Petitioner's claim.
7

court to impose an enhanced sentence based on the fact of a prior
conviction (Doc. 2 at 3-5).

Carachuri-Rosendo does not open the

door to review of this § 2241 petition for two reasons.
First, the United States Supreme Court has stated that “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 quotations omitted). The Supreme
Court has not declared its decision in Carachuri-Rosendo to be a
new rule of constitutional law that is retroactively applicable.
Moreover, the Eleventh Circuit has not recognized it as such.
See, e.g., Trice Bey v. Warden, FCI Bennettsville, S. 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).
Next, even setting aside the question of Carachuri-Rosendo’s
retroactivity, the facts are not analogous to Petitioner's case.
Carachuri-Rosendo

concerned

Immigration

Nationality

and

petitioner’s

second

state

a

removal
Act

proceeding

(“INA”)

conviction

for

and

under

the

whether

the

misdemeanor

drug

possession qualified as an “aggravated felony” for purposes of
determining the petitioner’s rights under the INA.
argued

that

conviction

the

petitioner’s

qualified

as

an

second

“aggravated
8

state

The Government

misdemeanor

felony”

under

the

drug
INS

statutes because the state prosecutor could have charged him with
a

felony

and

because

the

charge

prosecuted in federal court.

could

have

been

a

felony

if

The Supreme Court disagreed, in part

because allowing the Government to simply assume that a state drug
conviction would have been a felony under the recidivist statute
in

federal

requirement.

court

ignored

21

U.S.C.

§

851’s

mandatory

notice

Carachuri-Rosendo, 130 S. Ct. at 2579-80.

Presumably,

Petitioner

seeks

to

analogize

the

removal

proceedings under the INA to the sentencing enhancement sought by
the Government at his sentencing.

Indeed, the Carachuri-Rosendo

Court did specifically note that “[n]otice, plus an opportunity to
challenge the validity of the prior conviction used to enhance the
current conviction, §§ 851(b)-(c), are mandatory prerequisites to
obtaining a punishment based on the fact of a prior conviction.”
130 S. Ct. at 2582.
of

law

that

However, this statement was not a “new” rule

overturned

any

precedent;

rather

recognition of the current state of the law.

it

was

merely

The Court noted:

We have previously recognized the mandatory
nature of these requirements, as have the
courts of appeals. See United States v.
LaBonte, 520 U.S. 751, 754, n. 1, 117 S. Ct.
1673, 137 L.Ed.2d 1001 (1997) (“We note that
imposition
of
an
enhanced
penalty
[for
recidivism] is not automatic. . . . If the
Government does not file such notice [under 21
U.S.C. § 851(a)(1)] . . . the lower sentencing
range
will
be
applied
even
though
the
defendant may otherwise be eligible for the
9

a

increased penalty”); see also, e.g., United
States v. Beasley, 495 F.3d 142, 148 (4th
Cir.2007); United States v. Ceballos, 302 F.3d
679, 690–692 (7th Cir.2002); United States v.
Dodson, 288 F.3d 153, 159 (5th 2002); United
States v. Mooring, 287 F.3d 725, 727–728 (8th
2002). Although § 851's procedural safeguards
are
not
constitutionally
compelled,
see
Almendarez–Torres, 523 U.S. at 247, 118 S. Ct.
1219,
they
are
nevertheless
a
mandatory
feature of the Controlled Substances Act and a
prerequisite to securing a felony conviction
under § 844(a) for a successive simple
possession offense.
Carachuri-Rosendo, 560 U.S. at n.6.

Nothing precluded Petitioner

from challenging the legality of his allegedly defective § 851
notice at trial, on appeal, or in his first § 2255 motion.
contrary,

the

holding

in

LaBonte

challenge. 520 U.S. at 724 n.1.
not

a

retroactively

would

have

supported

To the
such

a

Accordingly, Carachuri-Rosendo is

applicable

Supreme

Court

decision

that

satisfies the first Williams requirement to open a portal to §
2241 review.
Nor
United

did

the

States,

Eleventh

foreclose

a

Circuit’s
challenge

2001
to

holding

in

Petitioner's

Perez

v.

allegedly

defective § 851 notice so that he could not have raised it at
trial, on appeal, or in his first § 2255 motion.
would have supported such a claim.

In fact, Perez

In Perez, the Eleventh Circuit

10

specifically noted that it generally required “strict compliance”
with the notice requirements of § 851. 249 F. 3d at 1264.3
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.

2013)(holding
federal
raised

habeas
in

an

Warden,

that

§

Coleman

2255(e)'s

petitioner's
earlier

FCI,

§

savings

claim,
2255

709

F.3d
clause

because

it

proceeding).

1328
did
could

(11th

Cir.

not

cover

have

Because

been

circuit

precedent did not foreclose this claim in 2005, when Petitioner
was

convicted

and

sentenced,

his

first

§

2255

motion

was

not

inadequate or ineffective to raise the instant sentencing claim.

3

The original § 851 notice in Perez’ case listed the
incorrect year of one of his convictions, but the prosecutor
amended the notice prior to Perez’ entry of a guilty plea and
prior to his sentence.
Perez sought to invalidate the amended
notice as untimely filed.
The Eleventh Circuit did not declare
the amended notice invalid, recognizing that § 851(a)(1) allows
the correction of clerical mistakes in a § 851 notice at any time
prior to the pronouncement of sentence if the original § 851
notice was timely filed before the entry of a guilty plea. Perez,
249 F.3d at 1267.
11

Accordingly, the savings clause provision of § 2255(e) does not
apply to this petition.
c.

Petitioner's conviction for felony possession of
marijuana qualified as a felony drug offense under
21 U.S.C. § 841

Title 21 U.S.C. § 841(b) ratchets up the mandatory minimum
sentences

for

recidivist

drug

offenders.

Specifically,

it

provides that if a defendant was previously convicted of a felony
drug

offense,

sentences

for

the

five-year

certain

drug

and

ten-year

crimes

are

mandatory

doubled.

21

minimum
U.S.C.

§

841(b)(1)(A)-(B). For a defendant, such as Petitioner, with two or
more prior drug felonies, the mandatory minimum is increased to
life in prison. 21 U.S.C. § 841(b).
The

term

“felony

drug

offense”

is

defined

very

broadly.

Under 21 U.S.C. § 802(44), a “felony drug offense” is any “offense
that is punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that
prohibits

or

marihuana,

restricts

anabolic

conduct

steroids,

relating
or

to

narcotic

depressant

or

drugs,

stimulant

substances.”
Petitioner

argues

that

he

pleaded

guilty

to

“simple

possession of marijuana, a misdemeanor punishable by no more than
1 year in jail[,]” and therefore, “the district court [did not]
have jurisdiction to enhance his sentence to life.” (Doc. 2 at 3).
12

This assertion is belied by Petitioner's plea colloquy in which he
pleaded guilty to felony possession of marijuana and was sentenced
to two years in the penitentiary (Doc. 1 at 18).4
Accordingly, even if the Court had jurisdiction to consider
Petitioner's § 2241 petition, his claim would fail on the merits.
III.

Conclusion

Because

Petitioner

cannot

satisfy

the

first

prong

of

the

Williams test, the savings clause of § 2255(e) does not apply, and
Petitioner's collateral attack on his federal conviction must be
treated as a § 2255 petition. However, Petitioner has previously
filed a § 2255 petition, and the instant action is successive.
Therefore,

this

Court

is

without

jurisdiction

to

consider

it.

Consequently, the petition must be dismissed. Moreover, because

4

Georgia Code § 16-13-30(j)(1) specifically states that “[i]t
shall be unlawful for any person to possess, have under his or her
control, manufacture, deliver, distribute, dispense, administer,
purchase, sell, or possess with intent to distribute marijuana.”
If the quantity of marijuana is greater than one ounce, it is a
felony punishable by more than one year in prison.
Although
possession of less than one ounce of marijuana is a misdemeanor
under Georgia law, such is not punishable by more than one year in
prison. See Ga. Code § 16-13-2(b).
Accordingly, in addition to
the state court’s classification of Petitioner's conviction as a
felony,
Petitioner's
two-year
sentence
indicates
that
his
conviction for possession of marijuana was a felony conviction
under Georgia Code § 16-13-30(j)(1).
13

Petitioner had two qualifying prior drug convictions, he qualified
for enhanced sentencing under 21 U.S.C. § 841(b).
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. The 28 U.S.C. § 2241 (Doc. 1) petition filed by Avery
Hardy is DISMISSED as an improper filing under § 2241; and
2. The Clerk is directed to enter judgment against Hardy,
terminate any pending motions, and close this case.
DONE and ORDERED in Fort Myers, Florida, this
November, 2013.

SA: OrlP-4 11-13
Copies furnished to:
All parties of record

14

18th

day of