Cintron v. Secretary Department of Corrections et al

Filing 3

ORDER: The Petition for Writ of Habeas Corpus is DISMISSED without prejudice. The Clerk shall terminate all pending motions and close this case. Because Petitioner is not entitled to a certificate of appealability, Petitioner is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 1/23/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

RAMON CINTRON,
Petitioner,
v.

Case No. 8:12-CV-113-T-30MAP

SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
/
ORDER
This matter is before the Court upon the filing of a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (“petition”) (Dkt. 1). The Petitioner is a state prisoner who
challenges his 2011 convictions for trafficking in heroin, conspiracy to trafficking in heroin,
and possession of cocaine entered by the Thirteenth Judicial Circuit Court, Hillsborough
County, Florida. Petitioner contends in his petition that his convictions are unconstitutional
under Shelton v. Sec’y, Dep’t of Corr., 2011 U.S. Dist. LEXIS 86898; 23 Fla. L. Weekly Fed.
D 11 (M.D. Fla. July 27, 2011), which declared unconstitutional a 2002 amendment to
Florida Statute, § 893.13 that eliminated the mens rea requirement for possession or
distribution of cocaine.
DISCUSSION
Petitioner challenges the validity of his convictions and sentences. “[C]hallenges to
the execution of a sentence, rather than the validity of the sentence itself, are properly
brought under § 2241.” Antonelli v. Warden. U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir.

2008). However, a writ of habeas corpus may issue to a prisoner pursuant to section 2241
if the prisoner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). 28 U.S.C. § 2254 “applies to a subset of those to whom”
section 2241(c)(3) applies. Thomas v. Crosby, 371 F.3d 782, 786 (11th Cir. 2004). § 2254
applies to “‘a person in custody pursuant to the judgment of a State court who is in custody
in violation of the Constitution or law or treaties of the United States.” Id. (quoting section
2254(a)) (emphasis in original). “[A] habeas petition filed by a state prisoner in custody
pursuant to the judgment of a state court is subject both to § 2241 and to § 2254, with its
attendant restrictions.” Id., at 785 (citing Medberry v. Crosby, 351 F.3d 1049 (11th Cir.
2003)). “A state prisoner cannot evade the procedural requirements of § 2254 by filing
something purporting to be a § 2241 petition.” Id., at 787. Accordingly, because Petitioner
is in custody pursuant to the judgment of a state court, this Court must apply the procedural
restrictions contained in § 2254 to Petitioner’s petition.
It is apparent from the petition and the Florida Second District Court of Appeal’s
records, that Petitioner’s appeal of the judgment of conviction remains pending on direct
review. See Cintron v. State, No. 10-CF-5664 (Fla. 13th Jud. Cir. 2010), notice of appeal
docketed, No. 2D11-4617 (Fla. 2d DCA September 20, 2011).1 Consequently, the state court
judgment has not become final. Therefore, his habeas petition, which challenges the
judgment of conviction, is not ripe for review at this time. See Maharaj v. Sec’y Dep’t of
Corr., 304 F.3d 1345 (11th Cir. 2002)(federal habeas petition was not ripe for review when
1

The Court takes judicial notice of information available on the database maintained by the Clerk of
Court, Florida Second District Court of Appeal, http://www.2dca.org/the_clerk's_office.htm, . See Fed. R. Evid.
201.

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state judgment was not yet final). Thus, Petitioner’s petition will be dismissed without
prejudice to Petitioner to refile his habeas petition when the state court judgment becomes
final.2
ACCORDINGLY, the Court ORDERS that:
1.

The Petition for Writ of Habeas Corpus is DISMISSED without prejudice
(Dkt. 1).

2.

The Clerk shall terminate all pending motions and close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the
Rules Governing Section 2254 Cases in the United States District Courts because Petitioner
has failed to make a substantial showing of the denial of a constitutional right as required by
28 U.S.C. § 2253(c)(2). Because Petitioner is not entitled to a certificate of appealability,
Petitioner is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on January 23, 2012.

SA:sfc
Copy furnished:
Petitioner pro se

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To the extent Petitioner is requesting this Court interfere in the pending state criminal proceedings,
dismissal of the Petition is warranted under the Younger doctrine. See Younger v. Harris, 401 U.S. 37
(1971)(holding that federal courts should abstain from interfering with pending state proceedings when the pending
state proceedings are judicial in nature, the proceedings involve important state interests, and the proceedings offer
adequate opportunity to raise any constitutional issues).

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