Goins v. Flournoy

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 7 Motion, DISMISS Goins' Section 2241 1 Petition, and CLOSE this case. It is also RECOMMENDED that the Court DENY Goins 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 4/13/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/30/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
MICHAEL DERRICK GOINS,
Petitioner,

CIVIL ACTION NO.: 2:16-cv-169

v.
WARDEN J.V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Michael Goins (“Goins”), who is currently incarcerated at the Federal
Correctional Institution-Satellite Low 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),
to which Goins did not respond. For the reasons which follow, I RECOMMEND that the Court
GRANT Respondent’s Motion, DISMISS Goins’ Section 2241 Petition, and CLOSE this case.
I also RECOMMEND the Court DENY Goins in forma pauperis status on appeal.
BACKGROUND
Goins was convicted in this Court, after entry of a guilty plea, of conspiracy to possess
with intent to distribute and to distribute cocaine hydrochloride, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846. The Honorable Dudley H. Bowen, Jr., sentenced Goins to 151
months’ imprisonment. J., United States v. Goins, 3:14-cr-2 (S.D. Ga. May 25, 2015), ECF No.
345, pp. 1–2. Goins did not file a direct appeal.
Goins filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. In that motion, Goins contended this Court abused its discretion in determining the drug
quantity for which he was held accountable and his applicable offense level and by not awarding

Goins a one-point reduction for having entered a plea. Mot., United States v. Goins, 3:14-cr-2
(S.D. Ga. Aug. 23, 2016), ECF No. 399, pp. 1–10. Goins alleged his counsel was ineffective for
failing to obtain necessary records to show he did not obstruct justice willfully. (Id. at pp. 10–
11.) This Court dismissed Goins’ motion as untimely filed. R. & R., Order, United States v.
Goins, 3:14-cr-2 (S.D. Ga. Nov. 15, 2016 and Jan. 18, 2017), ECF Nos. 408, 418.
DISCUSSION
In his current Petition, Goins contends his sentence was enhanced illegally because the
Government failed to file a proper notice that it would seek a sentence enhancement. Goins
asserts his counsel was ineffective, which renders his guilty plea invalid. (Doc. 1, pp. 3, 4.)
Goins alleges a fundamental miscarriage of justice occurred in his criminal proceedings, he is
actually innocent of the crime to which he pled guilty, and this Court lacked jurisdiction over his
criminal prosecution. (Id. at p. 4.) Goins also alleges he was denied due process. (Id. at p. 5.)
Respondent contends that Goins 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.
In fact, Respondent asserts Goins does not cite to any new, retroactively applicable decision of
the United States Supreme Court, nor does he claim Eleventh Circuit precedent foreclosed his
contentions on an earlier occasion. Instead, Respondent states Goins’ claims are nothing more
than “a litany of legal nonsense.” (Doc. 7, p. 5.)
I.

Whether Goins 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
exceeds the statutory maximum penalty authorized by Congress; and (5) the savings clause

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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).
Here, Goins has not attempted to make any showing as to any of the five requirements to
open the savings clause portal. For instance, he does not cite to any new, retroactively applicable
decision of the United States Supreme Court, nor does he claim Eleventh Circuit precedent
foreclosed his contentions on an earlier occasion. Consequently, he cannot use Section 2255(e)’s
savings clause to attack the validity of his sentence via Section 2241.

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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
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)).
Goins previously unsuccessfully brought a Section 2255 motion in this Court. It appears
that, though Goins labels his filing a Section 2241 Petition, he is actually attempting to bring a
second or successive Section 2255 motion. Pursuant to Section 2255(h):
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). Thus, Goins must first seek permission from the Eleventh Circuit before
filing a second Section 2255 motion.
Moreover, the savings clause of Section 2255(e) only applies where a petitioner is
categorically prevented from ever proceeding with a successive 28 U.S.C. § 2255(h) motion,
such as when a second or successive claim is based on a new rule of statutory construction rather

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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 § 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, Goins 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 under Section 2255(h). This Court expresses no opinion on the ultimate
success of such an application. However, regardless of the merits of Goins’ arguments, Section
2255(h) clearly provides him a procedural avenue to assert those arguments. As such, he need
not, and thus, cannot rely upon Section 2255(e) in an attempt to proceed with his Section 2241
Petition. 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 Goins 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)). Thus, the fact

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that Goins previously brought a Section 2255 motion and faces the potential 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 Goins’ claims are likely 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). Since it appears Goins has
available to him the ability to seek permission to file a second or successive Section 2255
motion, he cannot show that Section 2255’s remedy is “inadequate or ineffective” to challenge
his sentence.
Consequently, the Court need not address the relative merits of Goins’ Section 2241
Petition. Because Goins 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 Goins’ Section 2241 Petition.
II.

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

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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 Goins’ 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 Goins in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 7), DISMISS Goins’ 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 Goins 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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Goins and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 30th day of March,
2017.

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

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