Starks v. Warden, FCC Coleman - USP I

Filing 11

ORDER: The Petition is DISMISSED with prejudice. The Clerk is directed to terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 10/1/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ALLEN JAMES STARKS,
Petitioner,
v.

Case No. 5:12-cv-305-Oc-30PRL

WARDEN, FCC COLEMAN- USP I,
Respondent.
/
ORDER DISMISSING PETITION
Petitioner, pro se, is a federal prisoner at the Coleman Federal Correctional Complex
within this district. Petitioner initiated this case by filing a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), in which he challenges his conviction and
sentence imposed in the Southern District of Alabama.1 Respondent maintains the Petition
should be dismissed because Petitioner cannot show that he is entitled to review of his claims
under the savings clause of §2255. (Doc. 5).
Discussion
Petitioner attacks the validity of his sentence rather than the means of its execution.
Petitioner unsuccessfully pursued relief under 28 U.S.C. § 2255 in the sentencing court.2
Thus, it is clear that Petitioner is now pursuing relief in this Court under § 2241 because
1

A federal jury found Petitioner guilty of conspiracy to possess cocaine and cocaine base with the
intent to distribute them (count one), structuring financial transactions to avoid reporting requirements (count
three) and money laundering (counts four and five). See United States v. Starks, 409 Fed. App’x 264, 265
(11th Cir. 2010)(unpublished decision affirming denial of re-sentencing pursuant to 18 U.S.C. § 3582(c)(2)).
2

See Doc. 9, Ex. 1.

filing a motion under § 2255 would be barred as a successive petition. See 28 U.S.C.
§ 2255. However, under these circumstances Petitioner is expressly precluded by § 2255
from pursuing any remedies under § 2241. Section 2255 states that an application such as
this “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 denied him relief[.]”
The Petitioner seeks to avoid the preclusive effect of that prohibition by invoking the
“savings clause” in § 2255 which permits relief to be sought under § 2241 if it “appears that
the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of [the
applicant’s] detention.” However, the unavailability of relief under § 2255 because of a
limitation bar, the prohibition against successive petitions, or a procedural bar does not
demonstrate that the § 2255 remedy is inadequate or ineffective. Wofford v. Scott, 177
F.3d 1236, 1244 (11th Cir. 1999). In Wofford, the Eleventh Circuit held that:
The savings clause of § 2255 applies to a claim when: 1) that
claim is based upon a retroactively applicable Supreme Court
decision; 2) the holding of that Supreme Court decision
establishes the petitioner was convicted for a nonexistent
offense; and, 3) circuit law squarely foreclosed such a claim
at the time it otherwise should have been raised in the
petitioner’s trial, appeal or first § 2255 motion.
Id. (emphasis added).
Even when those narrow and stringent requirements are met so as to “open the portal”
to a § 2241 proceeding, the Petitioner must then demonstrate “actual innocence.” Id. (citing
Bousley v. United States, 523 U.S. 614, 623 (1998) (“It is important to note in this regard that
‘actual innocence’ means factual innocence, not mere legal insufficiency.”)).
2

Petitioner has not demonstrated that he is entitled to pursue his claims under the
savings clause pursuant to Wofford. To the extent Petitioner relies on DiPierre v. United
States, 131 S. Ct. 2225 (2011)3 and United States v. O’Brien, 130 S. Ct. 2169, 2178-80
(2010),4 the Petition is due to be dismissed because these cases are not retroactively
applicable, and the cases do not render Petitioner actually innocent of his offense.
Conclusion
In light of these conclusions, which unmistakably govern the disposition of the
Petition in this case, Petitioner is not entitled to habeas relief in this § 2241 proceeding.
Accordingly, the Petition is DISMISSED with prejudice and the Clerk is directed to
terminate any pending motions and close this case.
DONE and ORDERED in Tampa, Florida on October 1, 2012.

Copies furnished to:
Counsel/Parties of Record

3

In DePierre, the Supreme Court held that the term "cocaine base," as used in 21 U.S.C.
§841(b)(1) refers to not just crack cocaine, but any cocaine in its chemically basic form.
4

In O'Brien, the only statute at issue was 18 U.S.C. § 924(c), which relates to the criminal offense
of using or carrying firearms during and in relation to a crime of violence or a drug trafficking crime. The
Court held that the "machine gun provision" of that statute, which mandates a 30-year minimum sentence for
the use of a machine gun in relation to the commission of the relevant crimes, constitutes an element of an
offense, not a sentencing factor. O'Brien,130 S. Ct. at 2180.

3