HILARIO v. ENGLISH, et al
Filing
9
REPORT AND RECOMMENDATION - It is recommended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. 1, be DISMISSED as frivolous, successive, and an abuse of the writ.. R&R flag set. Signed by MAGISTRATE JUDGE GARY R JONES on 1/15/14. Internal deadline for referral to district judge if objections are not filed earlier: 2/12/2014. (bkp)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
JOSE MIGUEL HILARIO,
Petitioner,
v.
CASE NO. 5:13-cv-314-RS-GRJ
WARDEN, N.C. English,
Respondent.
_____________________________/
REPORT AND RECOMMENDATION
Petitioner, an inmate in federal custody 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 paid the habeas corpus filing fee. (Doc. 5.) Because it is clear that
Petitioner is not entitled to habeas relief, and the instant Petition is successive, the
undersigned recommends that this case be dismissed.1
Petitioner’s claims stem from his guilty plea and 150-month sentence in the
District of Rhode Island following his guilty plea to one count of distribution of child
pornography and one count of possession of child pornography. It appears that
Petitioner never appealed his sentence; nor did he ever file a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255.
In the instant petition, Petitioner sets forth a number of claims that are, in most
respects, vague and indecipherable. Petitioner contends that his conviction is void
because the Federal government lacked “special maritime and territorial jurisdiction “ to
1
Pursuant to Habeas Rule 4, “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court” the Court
must dismiss the petition and it is unnecessary to serve the Petition on the Respondent.
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detain or prosecute him.
This court has previously explained to Petitioner that under the circumstances
presented, 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[.]” Here, Petitioner
never filed for relief under 28 U.S.C. § 2255, and the instant petition is therefore
statutorily barred.
Under limited circumstances, a Petitioner may avoid the preclusive effect of that
prohibition by invoking the “savings clause” in § 2255(e) 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,
“[t]he existence of the statutory bar on second and successive motions cannot mean
that § 2255 is inadequate or ineffective to test the legality of [Petitioner’s] detention
within the meaning of the savings clause.” Hardy v. United States, 443 F. App’x 489,
492 (11th Cir. 2011) (quoting Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir.
2011)). “The burden of demonstrating the inadequacy or ineffectiveness of the § 2255
remedy rests squarely on the petitioner.” Turner v. Warden Coleman CI (Medium), —
F.3d —, 2013 WL 646089, at *3 (11th Cir. Feb. 22, 2013) (citing McGhee v. Hanberry,
604 F.2d 9, 10 (5th Cir. 1979)).
While the Eleventh Circuit “has [] shown a willingness to allow a prisoner to bring
a § 2241 motion pursuant to the § 2255(e) savings clause if the Supreme Court decided
a ‘retroactively applicable, circuit law-busting decision’ that ‘established that he had
been convicted of a ‘non-existent crime,’” Petitioner has pointed to no such decision in
this case. Hardy, 443 F. App’x at 493 (quoting Wofford v. Scott, 177 F.3d 1236,
Case No: 5:13-cv-314-RS-GRJ
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1242–45 (11th Cir.1999)). In light of the fact that Petitioner has not met his burden of
demonstrating that the § 2255 remedy was inadequate or ineffective, and has not
shown that he is entitled to invoke the savings clause of § 2255(e), the undersigned
concludes that the instant petition is barred.
Further, this Court has recently dismissed several similar § 2241 petitions from
Petitioner because he failed to show that he was entitled to habeas corpus relief
pursuant to the savings clause. See Hiliario v. Warden, Case No. 5:13-cv-24-SPMGRJ, Doc. 10; Hilario v. Warden, Case No. 5:13-cv-266-WS-GRJ, Doc. 7; Hilario v.
Warden, Case. No. 5:13-cv-194-LC-CJK, Doc. 8.
In light of the foregoing, it is respectfully RECOMMENDED that the petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. 1, be DISMISSED as
frivolous, successive, and an abuse of the writ.
IN CHAMBERS this 15th day of January 2014.
s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the
proposed findings and recommendations w ithin 14 days after being served w ith a copy of this report
and recommendation. A party may respond to another party’s objections w ithin 14 days after being
served w ith a copy thereof. Failure to file specific objections limits the scope of review of proposed
factual findings and recommendations.
Case No: 5:13-cv-314-RS-GRJ
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