Whetstone v. Warden, FCC Coleman-Low

Filing 3

ORDER dismissing case without prejudice and directing Clerk to enter judgment, terminate any pending motions, and close the file. Signed by Judge William F. Jung on 7/19/2021. (CCB)

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Case 5:21-cv-00289-WFJ-PRL Document 3 Filed 07/19/21 Page 1 of 2 PageID 19 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION CASTER DELANEY WHETSTONE, Petitioner, v. Case No: 5:21-cv-289-WFJ-PRL WARDEN, FCC COLEMAN – LOW, Respondent. ______________________________ ORDER DISMISSING CASE Petitioner, proceeding pro se, initiated this case by filing a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner challenges his conviction claiming he was “denied his right to effective assistance of counsel during these proceedings.” Id. at 7. Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that “[i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” See also Rule 12, Rules Governing Section 2255 proceedings. The Eleventh Circuit, sitting en banc, overruled prior precedent and held that 28 U.S.C. § 2241 is not available to challenge the validity of a sentence except on very narrow grounds not present in this case. McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1079 (11th Cir. 2017) (en banc) (quoting 28 U.S.C. § 2255(e)); 1 Case 5:21-cv-00289-WFJ-PRL Document 3 Filed 07/19/21 Page 2 of 2 PageID 20 Bernard v. FCC Coleman Warden, 686 F. App’x 730 (11th Cir. 2017) (citing McCarthan, 851 F.3d at 1092-93). Thus, pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (directing sua sponte dismissal if the petition and records show that the moving party is not entitled to relief), this case is DISMISSED. See also 28 U.S.C. § 2255(b). The Clerk is directed to enter judgment dismissing this case without prejudice, terminate any pending motions, and close the file. IT IS SO ORDERED. DONE AND ORDERED at Tampa, Florida, on July 19, 2021. Copies to: Pro Se Petitioner 2

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