Bailey v. Warden, Federal Correctional Institution Jesup

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Respondent's 8 MOTION to Dismiss, be GRANTED and that Bailey's 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, be DISMISSED, and this case be CLOSED. I further RECOMMEND that Bailey be DEINED leave to proceed in forma pauperis. Any party seeking to object to this Report and Recommendation is OREDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 11/23/2015). ORDER directing service of the Magistrate Judge's REPORT and RECOMMENDATION. Signed by Magistrate Judge R. Stan Baker on 11/6/2015. (ca)

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

JERRY ALLEN BAILEY,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-14

v.
WARDEN, FEDERAL CORRECTIONAL
INSTITUTUION,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jerry Bailey (“Bailey”), who is currently incarcerated at the Federal
Correctional Institution in Jesup, Georgia, filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss, (doc. 8), and Bailey filed a
Response. (Doc. 10.) For the reasons which follow, I RECOMMEND that Respondent’s
Motion to Dismiss be GRANTED, Bailey’s Section 2241 Petition be DISMISSED, and this
case be CLOSED. It is also my RECOMMENDATION that Bailey be DENIED in forma
pauperis status on appeal.
BACKGROUND
Bailey pleaded guilty to conspiracy to sell, distribute, or dispense cocaine and cocaine
base, in violation of 21 U.S.C. §§ 841 and 846 in August 1995. He was sentenced as a career
offender pursuant to the United States Sentencing Guidelines, resulting in a 360-month term of
imprisonment. (Doc. 8-1, pp. 3, 8.) Bailey filed a direct appeal, and the Fourth Circuit Court of
Appeals dismissed his appeal. (Doc. 8-8, p. 2.)

Bailey filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 in 1999, which was dismissed as being untimely filed. (Doc. 8-4.) Bailey was able to get
one of his predicate state court convictions, upon which his career offender status rested, vacated
in 2005. (Doc. 8-6, p. 4.)
Since that time, Bailey has attempted to attack his designation as a career offender on
several occasions. For instance, he filed motions for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2), which were denied. (Doc. 8-1, pp. 14–15.) Bailey also filed a petition for writ of
error coram nobis, which the trial court dismissed as a successive Section 2255 motion on
December 6, 2005.

(Doc. 8-8.) Bailey filed another Section 2255 motion in the Western

District of North Carolina on August 2, 2012, (doc. 8-9), which was also dismissed as
successive. (Doc. 8-10.)
DISCUSSION
In his current Petition, which was filed on January 26, 2015, Bailey maintains he was
improperly sentenced as a career offender because one of his prior convictions has been vacated
and requests to be resentenced. (Doc. 1, pp. 6, 8.) Bailey asserts he can show the remedy
afforded by Section 2255 is inadequate or ineffective to challenge the legality of his sentence in
light of the Solicitor General’s position in Persaud v. United States, ___ U.S. ___, 134 S. Ct.
1023 (Jan. 27, 2014). (Id. at p. 11.)
Respondent asserts Bailey does not satisfy the savings clause of Section 2255 and cannot
proceed pursuant to Section 2241.

Respondent avers Bailey was not sentenced above the

applicable statutory range, and the Solicitor General’s concession in Persaud—that “[s]entences
that exceed the statutory maximum, or that impose a statutory mandatory minimum based on a

2

legal error, are cognizable under the savings clause[ ]”—is irrelevant to Bailey’s claims.
(Doc. 8, p. 5) (internal citation omitted). 1
I.

Whether Bailey can Proceed Pursuant to Section 2241
Ordinarily, an action in which an individual seeks to collaterally attack “the validity of a

federal sentence must be brought under § 2255,” in the district of conviction.

28 U.S.C.

§ 2255(a); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir. 2013),
abrogation on other grounds recognized by United States v. Hill, 799 F.3d. 1318, 1321 n.1 (11th
Cir. 2015). To utilize Section 2241 to attack the validity of a federal sentence or conviction, a
petitioner must show that the remedy afforded under Section 2255 is “inadequate or ineffective”
to challenge the validity of a conviction and/or sentence. Taylor v. Warden, FCI Marianna, 557
F. App’x 911, 913 (11th Cir. 2014).
The United States Court of Appeals for the Eleventh Circuit provides two “challenges to
which the savings clause” is applicable. Williams v. Warden, Fed. Bureau of Prisons, 713
F.3d 1332, 1343 (11th Cir. 2013). First:
[t]he savings clause of § 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.

1

Persaud is of no precedential value as the Supreme Court did not issue a decision on the merits but
instead remanded the case to the Fourth Circuit Court of Appeals in light of the Solicitor General’s
position. The Fourth Circuit in turn remanded the case to the Western District of North Carolina, and that
court has yet to rule on the merits of the Government’s position. Persaud v. United States, Case
No. 3:12CV509 (W.D. N.C.). In fact, the court granted the Government’s Motion to hold Persaud’s
Section 2241 Petition in abeyance pending the Fourth Circuit’s determination in United States v. Surratt,
No. 14-6851 (4th Cir.). Id. at Doc. 15. According to the Assistant United States Attorney in that case, the
district judge determined “under circumstances identical in all relevant ways to those presented in
[Persaud’s petition], that [Surratt’s] petition was not entitled to relief under § 2241.” Id. at p. 2. In
Surratt, the Fourth Circuit has affirmed the district court’s determination but has stayed the issuance of its
mandate pending resolution of the petition for rehearing en banc. Order, United States v. Surratt, No. 146851, (Sept. 14, 2015) (4th Cir.), ECF No. 71.

3

Id. (alteration in original) (quoting Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999)).
Second, the savings clause may apply when “a fundamental defect in sentencing occurred and
the petitioner had not had an opportunity to obtain judicial correction of that defect earlier.” Id.
(citations omitted) (internal quotation marks omitted).
The Eleventh Circuit “retreated from the purported three-factor test enumerated in
Wofford, calling it only dicta, and explain[ed] that [t]he actual holding of the Wofford decision .
. . is simply that the savings clause does not cover sentence claims that could have been raised in
earlier proceedings.” Turner, 709 F.3d at 1333 (alteration in original) (internal citation and
punctuation omitted).

However, Wofford’s holding establishes two necessary conditions—

although it does not go so far as holding them to be sufficient—for a sentencing claim to pass
muster under the savings clause.” Williams, 713 F.3d at 1343.
First, the claim must be based upon a retroactively applicable Supreme Court
decision. The second, and equally essential, condition is that the Supreme Court
decision must have overturned a circuit precedent that squarely resolved the claim
so that the petitioner had no genuine opportunity to raise it at trial, on appeal, or in
his first § 2255 motion.
Id. “The petitioner bears the burden of coming forward with evidence affirmatively showing the
inadequacy or ineffectiveness of the § 2255 remedy.” Smith v. Warden, FCC Coleman-Low,
503 F. App’x 763, 765 (11th Cir. 2013) (citation omitted). “A petitioner may not argue the
merits of his claim until he has opened the portal to a § 2241 proceeding by demonstrating that
the savings clause of § 2255(e) applies to his claim.” Id. (citation omitted).
In Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013), the United
States Court of Appeals for the Eleventh Circuit stated that, in order for a petitioner to show that
his prior Section 2255 motion was “inadequate or ineffective to test the legality of his detention,”
he must establish that:

4

(1) throughout his sentencing, direct appeal, and first § 2255 proceeding, our
Circuit’s binding precedent had specifically addressed [his] distinct prior state
conviction that triggered § 924(e) and had squarely foreclosed [his] § 924(e)
claim that he was erroneously sentenced above the 10-year statutory maximum
penalty in § 924(a); (2) subsequent to his first § 2255 proceeding, the Supreme
Court’s decision in Begay[ v. United States, 553 U.S. 137 (2008)], as extended by
this Court to [the petitioner’s] distinct prior conviction, overturned our Circuit
precedent that had squarely foreclosed [his] § 924(e) claim; (3) the new rule
announced in Begay applies retroactively on collateral review; (4) as a result of
Begay’s new rule being retroactive, [the petitioner’s] current sentence exceeds the
. . . statutory maximum authorized by Congress in § 924(a); and (5) the savings
clause in § 2255(e) reaches his pure § 924(e)-Begay error claim of illegal
detention above the statutory maximum penalty [authorized].
Bryant, 738 F.3d at 1274.
In Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), the Eleventh
Circuit majority determined that “the savings clause of § 2255(e) does not permit a prisoner to
bring in a § 2241 petition a guidelines miscalculation claim that is barred from being presented in
a § 2255 motion by the second or successive motions bar of § 2255(h).” 2 640 F.3d at 1312. “A
defendant who is convicted and then has the § 4B1.1 career offender enhancement, or any other
guidelines enhancement, applied in the calculation of his sentence has not been convicted of
being guilty of the enhancement.” Id. at 1320 (emphasis supplied). “[F]or claims of sentence
error, at least where the statutory maximum was not exceeded, the point where finality holds its
own against error correction is reached not later than the end of the first round of collateral
review.” Id. at 1312. “[T]he savings clause does not apply to sentencing claims . . . where the
sentence imposed was within the statutory maximum.” Id. at 1315.
2

“A second or successive motion must be certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain-- (1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h). “The mere fact that such a [§ 2255 motion] is
procedurally barred by § 2255’s statute of limitations or restriction on second or successive motions does
not make it inadequate or ineffective.” Peddi v. Hobbs, No. 98-2994, 1999 WL 976242, at *2 (11th Cir.
Oct. 27, 1999).

5

Bailey was convicted of violating 21 U.S.C. §§ 841 and 846, and the statutory maximum
sentence he faced was at least forty years’ imprisonment. 3

21 U.S.C. § 841(b) (West 1994).4

Bailey’s sentence of 360 months’ imprisonment did not exceed the statutory maximum. Thus,
the Gilbert decision bars Bailey’s claims, and he cannot proceed in this Section 2241 Petition
pursuant to Section 2255(e)’s savings clause. Bailey does not satisfy the savings clause, and the
Court need not address the relative merits of his Section 2241 Petition. Because Bailey has not
satisfied the requirements of Section 2255’s savings clause, he cannot “open the portal” to argue
the merits of his claim. Dean v. McFadden, 133 F. App’x 640, 642 (11th Cir. 2005). Based on
these reasons, Respondent’s Motion to Dismiss should be GRANTED and Bailey’s
Section 2241 Petition should be DISMISSED.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Bailey leave to appeal in forma pauperis. Though Bailey

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”).An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
3

Pursuant to his plea agreement, Bailey was responsible for “more than 1.5 kilograms of cocaine base[,]”
and “[c]onservatively” Bailey was “believed to be responsible for between three and five kilograms of
crack cocaine[.]” (Doc. 8-2, pp. 2–3.) Depending on the amount of drugs attributable to Bailey at
sentencing, he could have faced a sentence of life imprisonment. 28 U.S.C. §§ 841(b)(1)(A) & (B).
4

“Any person who attempts or conspires to commit any offense defined in this subchapter shall be
subject to the same penalties as those prescribed for the offense, the commission of which was the object
of the attempt or conspiracy.” 21 U.S.C. § 846. A conviction under Section 846 would necessarily
implicate an underlying offense, which in this case, was a violation of 21 U.S.C. § 841(a).

6

claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Bailey’s petition and the Respondent’s Motion to
Dismiss, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in
good faith. Thus, in forma pauperis status on appeal should be DENIED.
CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Respondent’s Motion to
Dismiss, (doc. 8), be GRANTED and that Bailey’s petition for writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2241, (doc. 1), be DISMISSED, and this case be CLOSED. I further
RECOMMEND that Bailey be DENIED leave to proceed in forma pauperis.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.

7

The filing of objections is not a proper vehicle through which to make new allegations or
present additional evidence.

Furthermore, it is not necessary for a party to repeat legal

arguments in objections.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon Bailey and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 6th day of
November, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

8