Mims v. Flournoy
Filing
17
ORDER ADOPTING the Magistrate Judge's 15 Report and Recommendation. Consequently, the Court GRANTS Respondent's 9 Motion to Dismiss, and DISMISSES Petitioner's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241. Additionally, the Court DENIES Petitioner leave to appeal in forma pauperis. The Clerk of Court is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 5/23/2016. (csr)
3 the aniteb btatto 39totrut Court
for the boutbern flitrict of atorat'a
Jprunsbttk Atbioton
COREY A. MIMS,
Petitioner,
V.
WARDEN J. V. FLOURNOY,
Respondent.
*
*
* CIVIL ACTION NO.: 2:15-cv-95
*
*
*
*
*
*
;! i)I1
Presently before the Court is the Magistrate Judge's March
18, 2016, Report and Recommendation, dkt. no. 15, to which
Petitioner has filed Objections, dkt. no.
16.
After an
independent and de novo review of the entire record, the Court
ADOPTS the Report and Recommendation, as modified and
supplemented below, as the opinion of the Court and OVERRULES
Petitioner's Objections. Consequently, the Court GRANTS
Respondent's Motion to Dismiss, dkt. no. 9, and DISMISSES
Petitioner's Petition for Writ of Habeas Corpus, filed pursuant
to 28 U.S.C. § 2241, dkt. no. 1. Additionally, the Court DENIES
Petitioner leave to appeal in forma pauperis.
AO 72A
(Rev. 8/82)
BACKGROUND
On January 27, 2009, a jury in the Southern District of
Florida found Petitioner guilty of possessing a firearm while
being a convicted felon, in violation of 18 U.S.C. § 922(g) (1).
Jury Verdict, United States v. Mims, 1:08-cr-21080 (S.D. Fla.
Jan. 27, 2009), ECF No. 26. Prior to sentencing, the United
States Probation Office prepared a Presentence Report. Dkt. No.
10. That Report classified Petitioner as an armed career
criminal under 18 U.S.C. § 924(e) (the Armed Career Criminal
Act, or "ACCA"), based upon his prior convictions for two
serious drug offenses, a strong-arm robbery conviction, and two
convictions for burglary of an unoccupied structure.' Id.
The
District Court agreed that Petitioner was an armed career
criminal and sentenced Petitioner to 235 months in prison. J.,
United States v. Mims, 1:08-cr-21080 (S.D. Fla. April 8, 2009),
ECF No. 30.
As laid out in the Magistrate Judge's Report and
Recommendation, Petitioner unsuccessfully challenged his
classification as an armed career criminal first on direct
appeal to the Eleventh Circuit Court of Appeals. United States
1
Under the ACCA, a defendant who is convicted under 18 U.S.C. § 922(g) is
subject to a 15-year mandatory-minimum prison sentence if he has three prior
convictions for "serious drug offenses" or "violent felonies" committed on
separate occasions. 18 U.S.C. § 924(e) (1); see also United States v. Samuel,
580 F. App'x 836, 841 (11th Cir. 2014). Without Section 924(e)'s
enhancement, Petitioner would have been subject to a maximum term of ten
years in prison. See Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253,
1285 (11th Cir. 2013) (recognizing that "[s]ection 924(a) (2) states that the
maximum sentence for a violation of § 922(g) is 10 years.").
AO 72A
(Rev. 8/82)
2
v. Mims, 360 F. App'x 88, 92-93 (11th Cir. 2010) . Petitioner
next unsuccessfully challenged his sentence through a 28 U.S.C.
§ 2255 motion in the Southern District of Florida. Order,
United States v. Mims, 1:11-cv-20016 (S.D. Fla. Jan. 23, 2012),
ECF No. 23. Then, on July 20, 2015, Petitioner filed the
instant Petition, pursuant to 28 U.S.C. § 2241, once again
disputing his classification as an armed career criminal. Dkt.
No. 1, pp. 3, 11.
Petitioner argues that, under the United States Supreme
Court's decision in Johnson v. United States,
U.S.
, 135
S. Ct. 2551 (June 26, 2015), he is actually innocent of his
underlying ACCA sentence because his convictions for "burglary
and common law robbery" no longer qualify as predicate violent
felonies under 18 U.S.C. § 924(e) (2) (B) (ii). Dkt. No 1, pp. 67•2
The Magistrate Judge recommended that the Court dismiss the
Petition because Petitioner could not challenge his sentence
pursuant to 28 U.S.C. § 2241. Dkt. No. 15, pp. 4-10.
Specifically, the Magistrate Judge found that Petitioner could
not satisfy the savings clause of 28 U.S.C. § 2255(e). Id.
Among other reasons, the Magistrate Judge explained that the
2
As the Magistrate Judge noted, Petitioner also cursorily cites the Supreme
Court's decisions in Johnson v. United States, 559 U.S. 133 (2010), Chambers
v. United States, 555 U.S. 122 (2009), and Begay v. United States, 553 U.S.
137 (2008). However, Petitioner's supporting brief and objections do not
mention these cases and only focus on the Supreme Court's 2015 Johnson
decision. Accordingly, the Court need not discuss the Magistrate Judge's
correct conclusion that the 2010 Johnson decision, as well as the decisions
in Chambers and Begay, do not entitle Petitioner to any relief. See Dkt.
No. 15, pp. 7-8.
AO 72A
(Rev. 8/82)
3
Eleventh Circuit had held that Johnson did not apply
retroactively to cases on collateral review. Id. (citing In re
Rivero, 797 F.3d 986, 989 (11th Cir. 2015)).
DISCUSSION
Subsequent to the Report and Recommendation, the United
States Supreme Court decided Welch v. United States, - U.S.
2016 WL 1551144 (Apr. 18, 2016), and held that Johnson
applies retroactively to cases on collateral review. In his
Report and Recommendation, the Magistrate Judge noted that the
Supreme Court had granted certiorari in Welch. Dkt. No. 15,
p. 8, n.5 (citing Welch v. United States, No. 15-6418,
S. Ct.
, 2016 WL 90594, at *1 (U.S. Jan. 8, 2016)).
However, the Magistrate Judge stated that, even if the Supreme
Court found Johnson to be retroactive, Petitioner's 2241 action
must be dismissed. Id. Specifically, the Magistrate Judge
stated that Petitioner would have a remedy under 28 U.S.C. §
2255(h) to pursue permission from the Court of Appeals to file a
second or successive 2255 motion. Id. Therefore, Section 2255
would not be inadequate or ineffective as to Petitioner's
claims. While the Court agrees with this conclusion, given the
decision in Welch, the Court expands the supporting discussion. 3
Much of the below discussion regarding the background of habeas
procedure echoes that of the Magistrate Judge. However, the
repetition is necessary to properly frame the Court's post-Welch
analysis.
4
I. Whether Petitioner can Proceed Pursuant to Section 2241
Section 2241 habeas corpus petitions "'are generally
reserved for challenges to the execution of a sentence or the
nature of confinement, not the validity of the sentence itself
or the fact of confinement.'" Vieux v. Warden, 616 F. App'x
891, 896 (11th Cir. 2015) (quoting Bryant v. Warden, FCC
Coleman-Medium, 738 F.3d 1253, 1288 (11th Cir. 2013) (emphasis
omitted)). 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). However, a petitioner who has
already brought a motion under Section 2255 must obtain
certification from the Court of Appeals before bringing a second
or successive Section 2255 motion. 28 U.S.C. § 2255(h).
Rather than seeking such permission from the Eleventh
Circuit, Petitioner filed this Petition for habeas corpus relief
pursuant to 28 U.S.C. § 2241. 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 dr. 2014). Although 28 U.S.C.
§ 2255(e) expressly limits the circumstances under which a
AO 72A
(Rev. 8/82)
5
Section 2241 petition may be filed, Petitioner asserts that he
properly filed this Petition under Section 2241 because he is
"actually innocent" of his ACCA conviction and sentence.
Specifically, Petitioner argues that, due to the Supreme Court's
decision in Johnson, he can proceed under the "savings clause"
of Section 2255(e).
Under Section 2255(e)'s "savings clause," a prisoner may
file a Section 2241 petition if an otherwise available remedy
under Section 2255 is inadequate or ineffective to test the
legality of his detention. Specifically, Section 2255(e)
provides:
An application for a writ of habeas corpus in behalf
of a prisoner who is authorized to apply for relief by
motion pursuant to this section, 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 has denied him
relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the
legality of his detention.
28 U.S. C. § 2255(e) (emphasis added). The above-underlined
portion of Section 2255(e) is referred to as the "savings
clause."
In Bryant, the Eleventh Circuit articulated the
requirements a petitioner must meet in order to proceed under
the savings clause with a Section 2241 petition that raises
sentencing claims. 738 F.3d 1253. The petitioner must
establish that: (1) binding circuit precedent squarely
AO 72A
(Rev. 8/82)
6
foreclosed the claim "throughout his sentence, direct appeal,
and first § 2255 proceeding"; (2)"subsequent to his first 2255
proceeding," a Supreme Court decision overturned that circuit
precedent; (3) the rule announced in that Supreme Court decision
applies retroactively on collateral review; (4) as a result of
the new rule, the petitioner's current sentence exceeds the
statutory maximum penalty authorized by Congress; and (5) the
savings clause reaches the petitioner's claim. Bryant, 738 F.3d
at 1274 (synthesizing the savings clause tests discussed in
Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), Gilbert v.
United States, 640 F.3d 1293 (11th Cir. 2011), and Williams v.
Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1343 (11th
Cir. 2013)); see also Jeanty v. Warden, 757 F.3d 1283, 1285
(11th Cir. 2014); Mackey v. Warden, FCC Coleman, 739 F.3d 657,
661-62 (11th Cir. 2014) (approving the Bryant test factors and
concluding that petitioner had satisfied all prongs thereof).
A petitioner must satisfy all five of these requirements to
obtain relief. Bryant, 738 F.3d at 1274. This threshold
showing is a jurisdictional requirement, and where it is absent,
federal courts lack authority to consider the merits of a
petitioner's Section 2241 claims. Williams, 713 F.3d at 1338.
Moreover, "[t]he petitioner bears the burden of coming forward
with evidence affirmatively showing the inadequacy or
ineffectiveness of the § 2255 remedy." Smith v. Warden, FCC
AO 72A
(Rev. 8/82)
7
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).
As noted above, Petitioner's attempt to "open the portal"
rests upon the Supreme Court's decision in Johnson. In Johnson,
the Supreme Court held that "imposing an increased sentence
under the residual clause of the Armed Career Criminal Act
violates the Constitution's guarantee of due process[.]"
U.S. at
, 135 S. Ct. 2551, 2563. However, the Court also
emphasized that its "decision does not call into question
application of the Act to the four enumerated offenses, or the
remainder of the Act's definition of a violent felony." Id.
Petitioner's Johnson claims do not satisfy the Bryant
factors because he cannot show that the savings clause reaches
those claims. Specifically, the remedy afforded by Section 2255
is not inadequate or ineffective to raise these claims.
Petitioner has a remedy available to him under 28 U.S.C.
§ 2255(h) to obtain permission from the Eleventh Circuit Court
of Appeals to file a second or successive Section 2255 petition.'
28 U.S.C. § 2255(h) provides,
AO 72A
(Rev. 8/82)
8
Indeed, the Supreme Court's decision in Welch making Johnson
retroactive fortifies the remedy available to Petitioner through
Section 2255(h) . Welch changes the Eleventh Circuit's Section
2255(h) analysis and no longer makes Section 2255(h)
automatically unavailable to petitioners relying upon Johnson.
See In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015) ("Under
section 2255(h) (2), the Supreme Court is the only entity that
can make a new rule retroactive.") (quoting Tyler v. Cain, 533
U.S. 656, 663 (2001) (internal citations and alterations
omitted)). In addition, the Eleventh Circuit has already
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
light of the evidence as a whole, would be sufficient
establish by clear and convincing evidence that
reasonable factfinder would have found the movant guilty
the offense; or
in
to
no
of
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.
$ Other courts have agreed that, while Johnson and Welch may provide
relief under Section 2255(h), they do not provide grounds for filing a
Section 2241 Petition under Section 2255(e) as Petitioner attempts to
do here. See King v. Werlich, No. 16-CV-300-DRH-CJP, 2016 WL 1583936,
at *3 (S.D. Iii. Apr. 20, 2016) ("Courts have decided that habeas
corpus relief under 28 U.S.C.A. § 2241 is not the appropriate method
of collateral attack under Johnson."). Subsequent to Welch,
Magistrate Judges R. Stan Baker and Brian K. Epps of this District
have independently concluded that a petitioner cannot bring a Johnson
claim via Section 2241 due the availability of relief under Section
2255(h). R. & R., Edwards v. Flournoy, Case 5:15-cv-130 (May 13,
2016), ECF No. 15; R. & R., Richard v. Stone, Case 3:16-cv-1 (Apr. 25,
2016), ECF No. 15 ("Regardless of whether the [circuit court] actually
grants permission for Petitioner to file a second or successive § 2255
motion, there is an available avenue to pursue a Johnson claim, and he
therefore cannot pursue relief in this Court under § 2241.").
AO 72A
(Rev. 8/82)
9
recognized Welch's holding and Johnson's application to cases on
collateral review. In re Robinson,
F.3d
, No. 16-11304,
2016 WL 1583616 (11th Cir. Apr. 19, 2016)
Furthermore, the savings clause of Section 2255(e) only
applies where a petitioner is categorically prevented from ever
proceeding with a successive Section 2255(h) motion, such as
when a second or successive claim is based on a new rule of
statutory construction rather than on new evidence or a new rule
of constitutional law. See, e.g., Bryant, 738 F.3d at 1377-78
(discussing retroactivity requirements in context of deciding
whether Section 2255 is inadequate or ineffective); see also In
re Davenport, 147 F.3d 605, 611 (7th Cir. 1998) (explaining a
new claim cannot be raised under Section 2241 unless it is based
on "a change that eludes permission in section 2255 for
successive motions"). In this case, Petitioner currently has
available to him an actual remedy under Section 2255(h). 6
6
The Court reminds Petitioner that the filing of Section 2255 motions
is governed by a statute of limitations period, and of particular
significance is Section 2255(f) (3). "It is important to note that 28
U.S.C. 2255(f) (3) requires that a § 2255 motion relying on a newlyrecognized right must be filed within one year from 'the date on which
the right asserted was initially recognized by the Supreme Court[.]'"
King V. Werlich, No. 16-CV-300-DRH-CJP, 2016 WL 1583936, at *3 (S.D.
Iii. Apr. 20, 2016) (quoting 28 U.S.C. § 2255(f) (3)). "Further, the
one-year period prescribed by 2255(f) (3) runs from the date of the
Supreme Court's ruling initially recognizing the right asserted[ I and
not from the date the newly recognized right was found to be
retroactive. Id. (emphasis in original) (citing Dodd v. United States,
545 U.S. 353, 358 (2005)). Johnson was decided by the Supreme Court
on June 26, 2015. Thus, if Petitioner wishes to seek leave from the
AO 72A
(Rev. 8/2)
10
This Court expresses no opinion on the ultimate success of
Petitioner's Section 2255(h) application. However, regardless
of the merits of Petitioner's Johnson arguments, he clearly has
a procedural avenue to assert those arguments. As such, he need
not, and, thus, cannot, rely upon Section 2255(e) to assert his
Johnson claims. See Harris v. Warden, 801 F.3d 1321, 1323 (11th
Cir. 2015) ("Regardless of whether the [Circuit from which
permission is sought] will actually certify a successive motion
based upon the above facts and legal theories, § 2255 is
adequate to test the legality of [the petitioner's] sentence.
Accordingly, § 2255(e)'s savings clause does not apply.").
Additionally, a Section 2255 motion is not "inadequate or
ineffective" under the savings clause merely because Petitioner
may be unable to comply with procedural restrictions. Jones v.
Warden, FCC Coleman Medium, 520 F. App'x 942, 945 (11th Cir.
2013) (noting the mere fact that a Section 2255 motion is
procedurally barred does not make that Section's remedy
inadequate or ineffective); see also Hill v. Morrison, 349 F.3d
1089, 1091 (8th Cir. 2003) (stating a petitioner "has the burden
of demonstrating Section 2255's relief" is 'unavailable or
ineffective[ ]', and to do so, there must be more than a
procedural barrier to bringing a Section 2255 motion. . . . This
Eleventh Circuit to file a Second 2255 motion, he must do so
expeditiously.
AO 72A
(Rev, 8/82)
11
court has held a § 2255 motion is not 'inadequate or
ineffective' merely because ' 2255 relief has already been
denied[ ]'") (internal citations omitted)). Petitioner brought
both a direct appeal with the Eleventh Circuit, as well as an
original Section 2255 motion in the district of his conviction.
However, the successiveness bar in Section 2255(h) does not
itself render a Section 2255 motion inadequate or ineffective.
Gilbert, 640 F.3d at 1308. Similarly, the fact that
Petitioner's claims could be barred by the statute of
limitations does not satisfy Section 2255(e)'s savings clause.
Jones, 520 F. App'x at 945. Rather, "[w]hat makes the § 2255
proceeding 'inadequate or ineffective' for [a petitioner] is
that he had no 'genuine opportunity' to raise his claim in the
context of a § 2255 motion." Zelaya v. Sec'y, Fla. Dep't of
Corr., 798 F.3d 1360, 1370 (11th Cir. 2015).
For all of these reasons, Petitioner has not satisfied the
requirements of Section 2255(e)'s savings clause. Consequently,
he cannot "open the portal" to argue the merits of his Section
2241 claim. Dean v. McFadden, 133 F. App'x 640, 642 (11th
Cir. 2005).'
Because the Court cannot address the relative merits of Petitioner's
claims due to his failure to satisfy the savings clause, the Court
will not discuss whether Petitioner's underlying convictions are
serious drug offense or violent felonies within the meaning of the
ACCA absent the residual clause.
AO 72A
(Rev. 8/82)
12
II. Denial of in Forma Pauperis Status on Appeal
The Court also DENIES Petitioner leave to appeal in forma
pauperis.
Though Petitioner has, of course, not yet filed a
notice of appeal, it is appropriate to address these issues in
this Order. 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
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. Neitzkev. 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).
AO 72A
(Rev. 8/82)
13
Based on the above analysis of Petitioner'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, the Court DENIES Petitioner in forma pauperis
status on appeal.
CONCLUSION
For the above stated reasons, the Court GRANTS Respondent's
Motion to Dismiss, DISMISSES Petitioner's Petition, and DENIES
Petitioner leave to appeal in forma pauperis.
The Clerk of
Court is DIRECTED to enter the appropriate judgment of dismissal
and to CLOSE this case.
2016.
SO ORDERED, this
GODBEY WOOD, CHIEF JUDGE
D STATES DISTRICT COURT
ERN DISTRICT OF GEORGIA
AO 72A
(Rev. 8/82)
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?