Siler v. Flournoy

Filing 15

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 10 MOTION to Dismiss, DISMISS Siler's 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, CLOSE this case, and DENY Siler l eave to proceed in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation 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 5/27/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/13/2016. (ca)

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

HERBERT SILER,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-100

v.
J.V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Herbert Siler (“Siler”), 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. 10), and Siler filed a
Response, (doc. 14). For the reasons which follow, I RECOMMEND that the Court GRANT
Respondent’s Motion to Dismiss, DISMISS Siler’s Section 2241 Petition, CLOSE this case, and
DENY Siler in forma pauperis status on appeal.
BACKGROUND
Siler was convicted in the Southern District of Florida, after a guilty plea, of possession
of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. 10-1, pp. 8–9.)
According to the Presentence Investigation report (“PSI”), Siler was classified as an armed
career criminal under 18 U.S.C. § 924(e) (the Armed Career Criminal Act, or “ACCA”). 1 (Doc.

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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, Siler would
have been subject to a maximum term of ten years in prison. See Bryant v. Warden, FCC Coleman-

12, p. 12.) Siler’s predicate convictions used to trigger this provision were his convictions under
Florida law for conspiracy to distribute cocaine, throwing a deadly missile, purchase and
possession of cannabis, and aggravated assault with a firearm. (Id.) In response to the PSI, Siler
objected that his prior convictions for purchase and possession of cannabis and throwing a
deadly missile did not qualify as ACCA predicates. (Id. at p. 26.) The government agreed that
Siler’s cannabis conviction did not qualify as a predicate offense, but at his sentencing the
Southern District of Florida overruled his objection as to the deadly-missile conviction. (Id.;
Doc. 10-3, p. 14.) Accordingly, the Court found that Siler qualified as an armed career criminal
and sentenced Siler to 235 months’ imprisonment, representing the lowest end of the guidelines
range. (Doc. 10-3, p. 22.)
On July 28, 2008, Siler filed a notice of direct appeal. 2 (Doc. 10-1, p. 10.) On April 15,
2009, the Eleventh Circuit Court of Appeals dismissed Siler’s appeal, finding that “the entire
record reveals no arguable issues of merit.” (Doc. 10-5, p. 4.) On July 14, 2010, Siler filed a
timely 28 U.S.C. Section 2255 petition in the Southern District of Florida, in which he argued
that under Johnson v. United States, 559 U.S. 133 (2010), his prior state convictions for
aggravated assault with a firearm and throwing a deadly missile did not qualify as predicate
offenses to trigger his sentence enhancement under the ACCA. (Doc. 10-6, p. 4.) The Southern
District of Florida denied his motion on March 29, 2011. (Doc. 10-7.)
Following the United States Supreme Court’s decision in Johnson v. United States, ___
U.S. ___, 135 S. Ct. 2551 (June 26, 2015), Siler filed the instant Section 2241 Petition alleging
that his ACCA-enhanced sentence is illegal and that he is being unlawfully detained.
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.”).
2

Because Siler had voluntarily waived his right to appeal any sentencing issues as part of his plea
agreement, his counsel filed an Anders brief in conjunction with Siler’s notice of appeal.

2

DISCUSSION
In his current Petition, Siler contends he is actually innocent of his ACCA sentence
enhancement in light of the United States Supreme Court’s decision in Johnson. 3 (Doc. 1, p. 1.)
Specifically, Siler asserts his prior convictions for aggravated assault with a firearm and
throwing a deadly missile are no longer considered “violent felonies” under the ACCA’s residual
clause. (Id.)
Respondent argues Siler is not entitled to use of Section 2255’s savings clause. (Doc. 10,
p. 7.) Respondent states Johnson cannot form the basis for savings clause relief, as the rule
announced in that case is a new constitutional rule 4, and neither the Supreme Court nor the
Eleventh Circuit has ever held that a Section 2255 motion is an “inadequate or ineffective”
vehicle by which to raise such a claim. (Id.)
I.

Whether Siler 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

3

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. . . . Today’s 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.” ___ U.S. at ___, 135 S. Ct. 2551, 2563. The ACCA “defines
‘violent felony’ as follows: ‘any crime punishable by imprisonment for a term exceeding one year . . .
that—‘(i) has as an element the use, attempted use, or threatened use of physical force against the person
of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.’ § 924(e)(2)(B) (emphasis
added). The closing words of this definition, italicized above, have come to be known as the Act’s
residual clause.” Johnson, ___ U.S. at ___, 135 S. Ct. at 2555–56.
4

While the United States Supreme Court has now decided Johnson announced a substantive rule that
applies retroactively to cases on collateral review, Welch v. United States, ___ U.S. ___ 2016 WL
1551144 (Apr. 18, 2016), Respondent’s requested relief of dismissal of Siler’s Section 2241 is no less
appropriate.

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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, such as Siler, who has already brought a petition under Section 2255,
must obtain certification from the Court of Appeals before bringing a second or successive
Section 2255 petition. 28 U.S.C. § 2255(h).
Rather than seeking permission to file a second 2255 motion from the Eleventh Circuit
Court of Appeals, Siler 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 Cir. 2014).

Although 28 U.S.C. § 2255(e) expressly limits the

circumstances under which a Section 2241 petition may be filed, Siler asserts that he properly
filed this motion under Section 2241 because he is “actually innocent” of his ACCA conviction
and sentence. (Doc. 1, p. 6.) Specifically, Siler argues that, due to the Supreme Court’s decision
in Johnson, his prior convictions no longer qualify as predicate convictions under the ACCA.
(Id.)
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.

4

28 U.S. C. § 2255(e) (emphasis added). The above-emphasized 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
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; Daniels v. Warden, FCC Coleman, 538 F. App’x 850, 852 (11th Cir. 2013) (“[A]
petitioner may not argue the merits of his claim until he has ‘open[ed] the portal’ to a § 2241
proceeding by demonstrating that the savings clause applies to his claim.”). Moreover, “[t]he
petitioner bears the burden of coming forward with evidence affirmatively showing the

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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).
As noted above, Siler relies upon the Supreme Court’s decision in Johnson to support his
savings clause argument. 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.
Siler’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. Siler 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. 5 On this front, the Court notes that the Supreme
Court recently decided in Welch v. United States, ___ U.S. ___ 2016 WL 1551144 (Apr. 18,
2016), that Johnson applies retroactively to cases on collateral review. The Supreme Court’s

5

28 U.S.C. § 2255(h) provides,
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.

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decision in Welch that makes Johnson retroactive changes the Eleventh Circuit’s Section 2255(h)
analysis and no longer makes Section 2255(h) automatically unavailable to petitioners such as
Siler. 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 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 only applies where a petitioner is categorically prevented
from ever proceeding with a successive § 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, Siler has available to him an actual remedy under Section
2255, specifically, the right to request permission to file a second or successive Section 2255
motion. 6 This Court expresses no opinion on the ultimate success of such an application.
However, regardless of the merits of Siler’s Johnson arguments, Section 2255(h) clearly provides
6

Other courts have noted 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). See King v. Werlich,
No. 16-CV-300-DRH-CJP, 2016 WL 1583936, at *3 (S.D. Ill. 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.”). Magistrate Judge Brian K. Epps of this District recently concluded that a petitioner cannot
bring a Johnson claim via Section 2241 due to the availability of relief under Section 2255(h). 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.”).

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him a procedural avenue to assert those arguments. As such, he need not, and, thus, cannot, rely
upon Section 2255(e). 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 Siler 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 court has held a § 2255 motion is not ‘inadequate or ineffective’ merely
because ‘§ 2255 relief has already been denied[ ]’”) (internal citations omitted)). Siler brought
both a direct appeal with the Eleventh Circuit, which he voluntarily dismissed, and
unsuccessfully brought a Section 2255 motion in the district of his conviction. However, the
successiveness bar in § 2255(h) does not itself render a § 2255 motion inadequate or ineffective.
Gilbert, 640 F.3d at 1308. Similarly, the fact that Siler’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).

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For all of these reasons, Siler 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). 7
Siler is reminded 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 newly-recognized 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.
Ill. Apr. 20, 2016) (quoting 28 U.S.C. § 2255(f)(3)). Johnson was decided by the Supreme Court
on June 26, 2015. “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[ ] 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)).
Based on these reasons, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Siler’s Section 2241 Petition.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Siler leave to appeal in forma pauperis. Though Siler 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
7

Because the Court need not address the relative merits of Siler’s claims due to his failure to satisfy the
savings clause, the Court will not discuss whether Siler’s underlying convictions for aggravated assault
with a firearm and throwing a deadly missile are violent felonies within the meaning of the ACCA.

9

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. 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 Siler’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 should DENY in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 10), DISMISS Siler’s Petition for Writ of Habeas Corpus, filed pursuant to 28
U.S.C. § 2241, (doc. 1), CLOSE this case, and DENY Siler leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation 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

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served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
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 Siler and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of May,
2016.

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

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