Terry v. Flourney
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 7 MOTION to Dismiss, DISMISS Terry's 1 Petition for Writ of Habeas Corpus, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Terry 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. (Objections to R&R due by 11/8/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/25/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 2:17-cv-30
J.V. FLOURNOY, Warden,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Khalil Terry (“Terry”), 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), to which Terry
filed a Response, (doc. 9). For the reasons which follow, I RECOMMEND that the Court
GRANT Respondent’s Motion, DISMISS Terry’s Section 2241 Petition, and DIRECT the
Clerk of Court to CLOSE this case. I further RECOMMEND the Court DENY Terry in forma
pauperis status on appeal.
On January 19, 2012, Terry pleaded guilty in the United Stated District Court for the
District of New Jersey of being a convicted felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). (Docs. 7-1, 7-2, 7-3.) The District of New Jersey sentenced Terry to 115
months’ imprisonment on June 7, 2012. (Doc. 7-4.) Terry’s plea agreement contained an appeal
waiver, (doc. 7-3, p. 4), and he did not file an appeal. Additionally, Terry has not filed a Motion,
pursuant to 28 U.S.C. § 2255, or taken any other action seeking to attack his conviction or
sentence before his sentencing court.
Rather, Terry has turned to this Court, the District of his present confinement, to attack
his sentence. In the instant Section 2241 Petition, he contends that he received an “[e]xcessive
sentence constituting double jeopardy.” (Doc. 1, p. 2, 6–8.) He also states that a “supervised
release term of 3 years probation [sic] is preferable to a prison sentence.” (Id. at p. 8.)
Respondent moved to dismiss Terry’s Petition, contending that he does not satisfy the
requirements of the 28 U.S.C. § 2255(e) “saving clause” in light of the Court of Appeals for the
Eleventh Circuit’s decision in McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d
1076, 1081 (11th Cir. 2017). (Doc. 7, pp. 2–5.) Terry filed a Response opposing the Motion to
Dismiss. (Doc. 9.)
Whether Terry 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) (internal
punctuation and citation 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) (citation omitted). 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.” Taylor v. Warden, FCI Marianna, 557 F. App’x 911, 913
(11th Cir. 2014); Turner, 709 F.3d at 1333 (noting the petitioner bears the burden of establishing
that the remedy under Section 2255 was inadequate or ineffective to test the legality of his
detention). A motion to vacate covers only challenges to the validity of a sentence, but the
saving clause and a petition for a writ of habeas corpus cover challenges to the execution of a
sentence. Cf. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (“It
is well-settled that a § 2255 motion to vacate is a separate and distinct remedy from habeas
corpus proper. . . . A prisoner in custody pursuant to a federal court judgment may proceed under
§ 2241 only when he raises claims outside the scope of § 2255(a), that is, claims concerning
execution of his sentence.”) (internal citations omitted)); United States v. Flores, 616 F.2d 840,
842 (5th Cir. 1980) (“[The prisoner’s] appropriate remedy is under § 2255, not 28 U.S.C. § 2241,
since the alleged errors occurred at or prior to sentencing.”).
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 “saving clause.” “Section 2255(e) makes clear that a motion to vacate is the
exclusive mechanism for a federal prisoner to seek collateral relief unless he can satisfy” the
saving clause. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th
After McCarthan, to determine whether a prisoner satisfies the saving clause, a court
need only analyze “whether the motion to vacate is an adequate procedure to test the prisoner’s
claim.” Id. at 1086. To answer this question, a court should “ask whether the prisoner would
have been permitted to bring that claim in a motion to vacate. In other words, a prisoner has a
meaningful opportunity to test his claim whenever section 2255 can provide him a remedy.” Id.
at 1086–87. In short, when reviewing a Section 2241 petition, courts should look to whether the
petitioner’s claim is of a kind that is “cognizable” under Section 2255. If so, the petitioner
cannot meet the “saving clause” and cannot proceed under Section 2241. To be sure, “[t]he
remedy [afforded] by [a Section 2255] motion is not ineffective unless the procedure it provides
is incapable of adjudicating the claim.” Id. at 1088. Whether the petitioner could obtain relief
under Section 2255 is not relevant to the McCarthan test. Thus, the “remedy” that must be
“inadequate or ineffective” to trigger the saving clause is “the available process—not substantive
relief.” Id. at 1086.
“Allowing a prisoner with a claim that is cognizable in a motion to vacate to access the
saving clause nullifies the procedural hurdles of section 2255[.]” Id. at 1090. For example,
“[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.” Id. at 1091 (“A federal prisoner has one year to move to vacate his sentence under
section 2255. But when a prisoner uses the saving clause to bring a claim that is cognizable in a
motion to vacate, he bypasses his statute of limitations and gains limitless time to press claims
that prisoners who meet the requirements of section 2255 do not receive.”); 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.”); see also
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)).
The Eleventh Circuit emphasized that the saving clause has meaning because not all
claims can be remedied by Section 2255. “A prisoner sentenced by a federal court, for example,
may file a petition for a writ of habeas corpus to challenge the execution of his sentence, such as
the deprivation of good-time credits or parole determinations.” McCarthan, 851 F.3d at 1092–93
(citing Hajduk v. United States, 764 F.2d 795, 796 (11th Cir. 1985)). “The saving clause also
allows a prisoner to bring a petition for a writ of habeas corpus when the sentencing court is
unavailable. Other circuits have held that a prisoner may file a petition for a writ of habeas
corpus if his sentencing court has been dissolved.” Id. at 1093 (quoting Prost v. Anderson, 636
F.3d578, 588 (10th Cir. 2011) (explaining that, for military prisoners, “the resort to § 2241 is the
norm rather than the exception . . . due to the evanescent nature of court martial proceedings: the
sentencing court literally dissolves after sentencing and is no longer available to test a prisoner’s
collateral attack”)). Additionally, “perhaps practical considerations (such as multiple sentencing
courts) might prevent a petitioner from filing a motion to vacate.” Id. (citing Cohen v. United
States, 593 F.2d 766, 771 & n.12 (6th Cir. 1979)). However, “only in those kinds of limited
circumstances is [the remedy by motion] ‘inadequate or ineffective to test the legality of his
detention.’” Id. (quoting Samak, 766 F.3d at 1278 (W. Pryor, J., concurring) (quoting 28 U.S.C.
§ 2255(e)). It is not enough to trigger the “saving clause” to claim that new case law exists, that
new facts have come to light, or that the Section 2255 court got it wrong. Id. at 1086, 1090. “If
the saving clause guaranteed multiple opportunities to test a conviction or sentence, then the bar
against second and successive motions under section 2255(h) would become a nullity.” Id. at
This case does not present the “limited circumstances” warranting application of the
saving clause. Terry’s claims—that his sentence is excessive and violates double jeopardy—are
the types of claims and requested relief that Section 2255 encompasses. Though his Petition is
not entirely coherent, it is clear that Terry is not attacking the manner in which his sentence is
being executed. Thus, he would have been permitted to bring his claims in a motion to vacate,
and Section 2255 provides Terry with an adequate procedure to test his claim. Terry’s Response
to the Motion to Dismiss, (doc. 9), is entirely nonresponsive to Respondent’s arguments and
ignores the holding in McCarthan.
Terry never cites the saving clause or the holding in
McCarthan, and he makes no attempt to explain why he is bringing his claims through a Section
Further, Terry’s Section 2255 remedy is not nullified merely because he cannot overcome
procedural requirements for relief. See McCarthan, 851 F.3d at 1086 (“[A] procedural bar might
prevent relief, but that bar does not render the motion itself an ineffective or inadequate
remedy.”). Thus, the fact that Terry may face a statute of limitations bar to bringing a Section
2255 Motion does not itself render a Section 2255 motion inadequate or ineffective. Id.; Gilbert,
640 F.3d at 1308. 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).
Section 2255 provides Terry an “adequate procedure” to test his conviction and sentence
before his sentencing court. Consequently, Terry cannot show that Section 2255’s remedy is
“inadequate or ineffective” to challenge his sentence and “cannot now use the saving clause to
make [his] claim[s] in a petition for a writ of habeas corpus.” McCarthan, 851 F.3d at 1099–
1100. Because Terry cannot satisfy the saving clause, his claims are procedurally barred, and the
Court cannot reach the merits of his arguments.
For all these reasons, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Terry’s Section 2241 Petition.
Leave to Appeal in Forma Pauperis
The Court should also deny Terry leave to appeal in forma pauperis. Though Terry 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
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 Terry’s Petition and 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 Terry in forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 7), DISMISS Terry’s Petition for Writ of Habeas Corpus, (doc. 1), and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court
DENY Terry 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. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Terry and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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