Buitrago v. Warden

Filing 17

ORDER ADOPTING 14 Report and Recommendations of the Magistrate Judge. Buitrago's Objections are overruled. The Respondent's 10 Motion to Dismiss is granted. Buitrago's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is dismissed. The Clerk is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 10/1/2013. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

RODRIGO BUITRAGO,
Petitioner,
CIVIL ACTION NO.: CV213-070

vs.

WARDEN, FCI JESUP,
Respondent.

ORDER
After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Objections
have been filed. In his Objections, Buitrago insists that "his claim qualifies for a § 2241
petition because it constitutes a fundamental defect." (Doc. 16, p. 6). Buitrago asserts
he "is not attacking the validity of his conviction," rather, his claim is "an attack on the
validity of the district court's jurisdiction to impose a sentence beyond the statutory
maximum." (Id. at p. 12). Thus, in Buitrago's estimation, because he does not attack
the validity of his underlying conviction, he need not satisfy the test announced in
Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), and he is not required to
demonstrate actual innocence.
Buitrago is currently serving two life sentences imposed in the Southern District
of Florida after his conviction for conspiracy to import cocaine, conspiracy to possess
with intent to distribute cocaine, and for carrying a firearm during and in relation to a

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drug trafficking crime. Buitrago received guideline sentencing enhancements for
possession of a dangerous weapon (U.S.S.G. § 2D1.1(b)(1)); victim vulnerability
(U.S.S.G. § 3A1.l(b)); physical restraint (U.S.S.G. § 3A1.3); and role in the offense
(U.S.S.G. § 3131.1(a)). (Doc. No. 10-8, p. 7). In the instant § 2241 petition, Buitrago's
arguments all proceed from his central contention that he was sentenced:
to two terms of life imprisonment based on findings not charged in the
indictment exceeding the statutory maximum sentence authorized by
Congress for the offense of conviction as represented by the indictment.
The indictment charged an unquantified amount of cocaine and made no
specific citation for drug quantity or statutory provision.

(Doc. No. 1, p. 7). The Magistrate Judge properly characterized Buitrago's claim, that
the district court lacked jurisdiction to sentence him above the statutory maximum
based on facts not charged in the indictment or found by a jury, as an attack on the
validity of his conviction and sentence. (Doc. No. 14, p. 4).
As explained by the Magistrate Judge, typically, collateral attacks on the validity
of a federal conviction or sentence must be brought under § 2255. Sawyer v. Holder,
326 F.3d 1363, 1365 (11th Cir. 2000). Buitrago relies on Gilbert v. United States, 640
F.3d 1293 (11th Cir. 201 1)(en banc), to support his contention that Wofford does not
apply to his petition. Prior to Gilbert, the well-settled Eleventh Circuit precedent was
that the savings clause under 28 U.S.C. § 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."

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Wofford, 177 F.3d at 1244. The Magistrate Judge correctly concluded Buitrago does
not satisfy the Wofford test.
In Gilbert, the Eleventh Circuit expressly held that the § 2255 savings clause
"does not authorize a federal prisoner to bring in a § 2241 petition a claim, which would
otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in a
way that resulted in a longer sentence not exceeding the statutory maximum." Id., 640
F.3d at 1323. Further, in its discussion of the "actual innocence" exception under §
2255(h)(1), the Eleventh Circuit stated that the "actual holding of Wofford, which is
undoubtedly correct, is simply that the savings clause does not cover sentence claims
that could have been raised in earlier proceedings." jj at 1319. Eleventh Circuit
cases after Gilbert continue to apply the Wofford test. See Turner v. Warden Coleman
FCI (Medium), 709 F.3d 1328, 1333-34 (11th Cir. 2013): Marshall v. United States, 514
F. App'x 936, 937 (11th Cir. 2013); Williams v. Warden, 713 F.3d 3232, 1342-44 (11th
Cir. 2013). The undersigned concludes that even under Gilbert's interpretation of
Wofford, Buitrago fails to "open the portal" to a § 2241 proceeding. Buitrago cannot
show that he was unable to present any of his arguments at trial, on direct appeal, or in
his first § 2255 petition. Buitrago's claim does not fall within the savings clause of §
2255(e); therefore, he cannot bring it under §2241.
The Magistrate Judge also correctly explained that, "[t]o the extent that Buitrago
attempts to argue that his jurisdictional-defect-amounting-to-actual-innocence claim can
be heard pursuant to § 2241 because it would be a fundamental miscarriage of justice
for this Court not to render a merits determination of that claim, Buitrago's argument
was foreclosed by Kelley v. Hickey, 307 F. App'x 424 (11th Cir. 2009)." (Doc. No. 14,

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p. 6). This Court's decision to not render a decision on the merits of Buitrago's actual
innocence claim will not result in a miscarriage of justice.
Buitragos Objections are overruled. The Report and Recommendation of the
Magistrate Judge, as supplemented herein, is adopted as the opinion of the Court.
Respondent's Motion to Dismiss is GRANTED.

Buitragos petition for writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2241, is DISMISSED.

The Clerk of Court is

directed to enter the appropriate judgment of dismissal.

SO ORDERED, this

2013.

day of

LISA GDBEY WOOD, CHIEF JUDGE
VNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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