Escobar de-Jesus v. Warden, FCC Coleman - Medium

Filing 7

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 8/16/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

EUSEBIO ESCOBAR-DE-JESUS,
Petitioner,
v.

Case No. 5:13-cv-136-Oc-30PRL

WARDEN, FCC COLEMAN- MEDIUM,
Respondent.

ORDER DISMISSING PETITION
Petitioner, pro se, is a federal prisoner serving a life term of imprisonment. 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 District of
Puerto Rico.1

Petitioner seeks retroactive application of the Sentencing Guidelines

Amendment 591. Respondent maintains the Petition should be dismissed because Petitioner
has previously sought retroactive application of the Amendment and he cannot show that he
is entitled to review of his claims under the savings clause of §2255. (Doc. 5).

1

A federal jury in the District of Puerto Rico convicted Petitioner of sixteen drug, assault, and
weapons-related counts, including engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §
848(a) & (c) (count one), and causing an intentional killing while engaged in a continuing criminal enterprise,
in violation of 21 U.S.C. § 848(e) (count twelve). See United States v. Escobar-de Jesus, 187 F.3d 148, 15657 (1st Cir. 1999).

Discussion
Petitioner attacks the validity of his sentence rather than the means of its execution.
Petitioner acknowledges that he 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 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[.]”
Petitioner also has filed four motions pursuant to 18 U.S.C. § 3582(c)(2), seeking
retroactive application of sentencing guidelines Amendments 505 and 591. See United States
v. Escobar de Jesus, case No. 3:90-cr-130-PG at Docs. 1097, 1138, 1171, 1199. The district
court denied all of Petitioner’s motions. Petitioner appealed to the First Circuit, which
repeatedly affirmed the district court’s denial of section 3582 relief. Id. Thus, the instant
Petition is without merit, successive and an abuse of the writ.3
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. Any

2

See Doc. 1, pg. 2.

3

See Glumb v. Honsted, 891 F.2d 872, 873 (11th Cir. 1990) (previously adjudicated issues are barred
by the successive writ rule and the abuse of the writ doctrine).

2

of Petitioner’s allegations not specifically addressed herein have been found to be without
merit. 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 August 16, 2013.

Copies furnished to:
Counsel/Parties of Record

3