Llewlyn v. Flournoy

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 7 MOTION to Dismiss, DISMISS Llewlyn's Section 2241 1 Petition, and DIRECT the Clerk of Court to CLOSE this case. It is also RECOMMENDED that the C ourt DENY Llewlyn in forma pauperis status on appeal. 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. (Objections to R&R due by 1/2/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2016. (csr)

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

CHARLES LLEWLYN,
Petitioner,

CIVIL ACTION NO.: 2:16-cv-131

v.
J.V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Charles Llewlyn (“Llewlyn”), 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. 7), and Llewlyn filed a
Response. (Doc. 8.) For the reasons which follow, I RECOMMEND that the Court GRANT
Respondent’s Motion, DISMISS Llewlyn’s Section 2241 Petition, and DIRECT the Clerk of
Court to CLOSE this case. I also RECOMMEND the Court DENY Llewlyn in forma pauperis
status on appeal.
BACKGROUND
Llewlyn was convicted in the Western District of North Carolina, after a jury trial, for
conspiracy to distribute, and to possess with intent to distribute, cocaine and cocaine base, in
violation of 21 U.S.C. § 846. (Doc. 7, p. 1.) The district court sentenced Llewlyn to 360
months’ imprisonment on August 6, 2001, and the Fourth Circuit Court of Appeals affirmed his

sentence on October 21, 2002. 1 Mot., United States v. Odman, 4:96-cr-53 (W.D.N.C. Aug. 6,
2001), ECF Nos. 469, 489.
Llewlyn then filed a motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 in the Western District of North Carolina. J., Odman v. United States, 1:04-cv-44
(W.D.N.C. Mar. 11, 2004), ECF No. 1. In addition to a spate of claims alleging that the trial
court committed errors during his trial, Llewlyn levied several ineffective assistance of counsel
claims against his trial counsel and appellate counsel. The district court rejected each ground
presented in Llewlyn’s motion and dismissed that motion on December 12, 2005. Order, Odman
v. United States, 1:04-cv-44 (W.D.N.C. Mar. 11, 2004), ECF No. 10. Though Llewlyn appealed
the decision of the district court, the Fourth Circuit declined to grant him a certificate of
appealability. Llewlyn has also filed numerous, unsuccessful post-conviction petitions in this
district, where he remains incarcerated. See, e.g., Odman v. McFadden, Warden, 2:03-cv-060
(S.D. Ga.); Oddman v. Hickey, Warden, 2:09-cv-048 (S.D. Ga.); Llewlyn v. Warden, F.C.I.
Jesup, 2:15-cv-072 (S.D. Ga.).
DISCUSSION
In his current Petition, Llewlyn avers that his sentence exceeds the statutory maximum,
and therefore, violates the Ex Post Facto Clause of the United States Constitution. (Doc. 1, p. 1.)
Specifically, Llewlyn asserts that his sentence should have been based upon the 1994 Sentencing
Guidelines, as opposed to the 2001 Sentencing Guidelines that were in effect at the time of his
sentencing. (Id. at pp. 1–2.) In support of his argument that he may proceed with his claims via
Section 2241, Llewlyn cites the United States Supreme Court’s decision in Peugh v. United

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The Western District of North Carolina recently reduced Llewlyn’s sentence to 235 months’
imprisonment following retroactive amendments to the Sentencing Guidelines. Order, United States v.
Odman, 4:96-cr-53 (W.D.N.C. Jan. 19, 2016), ECF No. 739.

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States, ___ U.S. ___, 133 S. Ct. 2072 (June 10, 2013), which held that the Ex Post Facto Clause
is violated when a defendant is sentenced under Sentencing Guidelines promulgated after he
committed his criminal acts, and the new version provides a higher applicable Guidelines
sentencing range than the version in place at the time of his offense. In the alternative, Llewlyn
maintains that he may proceed via Section 2241 because “a sentence imposed above the [ ]
statutory maximum based on a legal error is a fundamental defect redressable under the savings
clause.” (Id. at p. 3.)
Respondent contends that Llewlyn cannot satisfy his burden of establishing entitlement to
relief pursuant to Section 2255’s savings clause, and his Petition should be dismissed as a result.
Respondent asserts that Llewlyn’s citation of Peugh does not satisfy the savings clause, as that
case does not apply retroactively to cases on collateral review, “does not establish that Llewlyn
was convicted of a nonexistent offense or sentenced above the statutory maximum,” and “has
nothing at all to do with the statutory definition of Llewlyn’s crime or the statutory punishment
for it.” (Doc. 7, p. 4.) Instead, Respondent states that Llewlyn could have raised the arguments
related to Peugh on a previous occasion but failed to do so. (Id. at p. 5.)
Llewlyn responds that he did not have a meaningful opportunity to raise the claims
presented in his 2241 Petition pursuant to Peugh and that, therefore, the savings clause applies to
his claims.
I.

Whether Llewlyn 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

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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). 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).
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-emphasized portion of Section 2255(e) is
referred to as the “savings clause.”
In Bryant, the Eleventh Circuit Court of Appeals 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

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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
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).
Furthermore, “[t]he 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.” Body v. Taylor, No. 1:15-CV-00311-AKK, 2015 WL 1910328, at *6
(N.D. Ala. Apr. 27, 2015), appeal dismissed, (Oct. 28, 2015) (quoting Wofford, 177 F.3d at 1245
(Cox, J., concurring specially) (“I also agree that the remedy by motion under § 2255 is not

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rendered ‘inadequate or ineffective’ because an individual is procedurally barred from filing a
second or successive § 2255 motion.”), United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir.
2000) (bars on successive motions and statute of limitations do not render § 2255 motion
inadequate or ineffective), and Charles v. Chandler, 180 F.3d 753, 756–58 (6th Cir. 1999)
(statute of limitations bar does not make Section 2255 inadequate or ineffective)).
Here, Llewlyn has not shown that the savings clause reaches his claims. Although
Llewlyn argues that Section 2255 is inadequate or ineffective to test the legality of his detention
because the Supreme Court announced its decision in Peugh after he filed his first Section 2255
motion, Peugh has not been held to be retroactively applicable to cases on collateral review. See
Salery v. Rathman, No. 1:13-cv-01622, 2016 WL 4134611, at *2 (N.D. Ala. June 20, 2016)
(“[N]o court has found Peugh to apply retroactively on collateral review.”); Thai v. Warden
Lewisburg USP, 608 F. App’x 114, 117 (3d Cir. 2015) (“Even accepting, arguendo,
[petitioner’s] contention that Peugh is relevant to the facts of [this] case, it does not apply
retroactively to cases on collateral review, as other courts have held.” (citing Herrera-Gomez v.
United States, 755 F.3d 142, 146 (2d Cir. 2014))). Accordingly, Llewlyn may not avail himself
of the savings clause because he fails to satisfy the third Bryant factor.
Furthermore, even if Peugh did apply retroactively to cases on collateral review,
Llewlyn’s petition would be untimely. A petitioner seeking to file a federal habeas petition has
one year within which to file their federal habeas petitions. 28 U.S.C. § 2244(d)(1). The statute
of limitations period shall run from the latest of four possible dates:

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(A) the date on which the judgment of conviction becomes final by the conclusion
of direct review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application by State action in
violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
Id.
The one-year statute of limitations also applies to Section 2241 petitions. Peoples v.
Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004). Here, Llewlyn relies upon the Peugh decision
as grounds for asserting that his sentence is unconstitutional. However, as discussed above,
Peugh is not retroactively applicable. Furthermore, even if that decision were retroactively
applicable, Llewlyn did not assert his claim in a timely manner. Peugh was decided on June 10,
2013, and Petitioner filed his 2241 Petition on September 19, 2016—more than three years after
the Supreme Court’s decision. Accordingly, even if Llewlyn had satisfied the savings clause, he
failed to meet the one-year statute of limitations period found at Section 2244(d)(1)(C), and, as a
result, his claims are not cognizable.
Finally, Llewlyn argues that he may proceed with his claims via Section 2241,
notwithstanding his failure to satisfy the savings clause and his failure to timely file a petition
based upon a retroactively applicable Supreme Court decision because his sentence qualifies as a
“fundamental miscarriage of justice.”

Even if a petitioner’s claim—like Llewlyn’s— is

procedurally defaulted, he “may challenge a sentencing error as a ‘fundamental defect’ on
collateral review when he can prove that he is either actually innocent of his crime or that a prior

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conviction used to enhance his sentence has been vacated.” Spencer v. United States, 773 F.3d
1132, 1139 (11th Cir. 2014). However, the Eleventh Circuit held in Ramiro v. Vasquez, 210 F.
App’x 901, 904 (11th Cir. 2006), that “[o]nly if a petitioner successfully ‘opens the portal’ [by
demonstrating that the savings clause applies to his claim] will [the Court] take the next step and
determine if the petitioner can overcome a procedural default by showing ‘actual innocence.’”
Accordingly, even if Peugh is relevant to the facts of Llewyn’s case, Llewlyn cannot satisfy the
requirements of the savings clause for the reasons previously discussed. 2 See id. (“[Because
petitioner] has not demonstrated that his claim is based on a retroactively applicable Supreme
Court decision . .

. [the Court] will not address the question of whether [petitioner] has

overcome his procedural default . . . [and] need not rule on [his] claims regarding his actual
innocence[.]”
Consequently, the Court need not address the relative merits of Llewlyn’s Section 2241
Petition. Because Llewlyn 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, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Llewlyn’s Section 2241 Petition.

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See also Berry v. United States, 468 F. App’x 924, 925–26 (11th Cir. 2012) (“McKay v. United States,
657 F.3d 1190 (11th Cir. 2011)[,] rejected the argument that an actual-innocence-of-sentence exception
applies to a . . . claim that the petitioner was wrongly sentenced . . . . Because the actual innocence
exception is focused on actual (not legal) innocence, [the Eleventh Circuit Court of Appeals] concluded
that [a] petitioner . . . [who] ma[kes] no claim to being factually innocent of [his] crime . . . cannot qualify
for the actual innocence exception.”). Similarly, here, Llewlyn does not claim that he is factually
innocent of his crime but argues that the sentence imposed upon him for that crime exceeded the
constitutional maximum. Accordingly, even if Llewlyn had satisfied the savings clause, his claim would
fail for this additional reason.

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II.

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

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
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 Llewlyn’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 Llewlyn in forma pauperis status on appeal.

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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 7), DISMISS Llewlyn’s Petition for Writ of Habeas Corpus, filed pursuant to
28 U.S.C. § 2241, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case. I further
RECOMMEND that the Court DENY Llewlyn 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
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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Llewlyn and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
2016.

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

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