Rice v. Flournoy

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 8 MOTION to Dismiss, and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. It is also RECOMMENDED that the Cour t DENY Rice 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 11/1/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/18/2017. (csr)

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

ADRIAN RENARD RICE,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-37

v.
JOHN V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Adrian Rice (“Rice”), 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. 8), to which Rice filed a
Response, (doc. 10). For the reasons which follow, I RECOMMEND that the Court GRANT
Respondent’s Motion, DISMISS Rice’s Section 2241 Petition, and DIRECT the Clerk of Court
to CLOSE this case and enter the appropriate judgment of dismissal. I also RECOMMEND the
Court DENY Rice in forma pauperis status on appeal.
BACKGROUND
Following a jury trial in the United States District Court for the Southern District of
Alabama, Rice was convicted of two counts of possession with intent to distribute crack cocaine,
in violation of 21 U.S.C. § 841, and conspiracy to possess with intent to distribute crack cocaine,
in violation of 21 U.S.C. § 846. (Doc. 8-1.) The Southern District of Alabama originally
sentenced Rice to 492 months’ incarceration. (Id. at p. 13.) That court subsequently reduced

Rice’s sentence to 364 months’ incarceration due to retroactive changes to the United States
Sentencing Guidelines. (Id. at p. 23.)
Rice has filed numerous post-conviction motions in the Southern District of Alabama.
(Id. at pp. 16–24.) On March 27, 1998, Rice filed a motion pursuant to 28 U.S.C. § 2255
attacking his conviction and sentence. (Id. at p. 16.) After Rice supplemented his Section 2255
pleading, the district court denied his motion. (Id. at pp. 17–18.)
Recently, Rice twice sought permission, under 28 U.S.C. § 2255(h)(2), from the Eleventh
Circuit Court of Appeals to file a second or successive Section 2255 motion. In the first of these
applications, Rice attacked the sentencing court’s application of United States Sentencing
Guidelines’ § 4B1.2’s career offender enhancement to his sentence. Appl., In re: Rice, Case No.
16-12267 (11th Cir. May 9, 2016). Rice cited the United States Supreme Court’s decision in
Johnson v. United States, ___ U.S.___, 135 S. Ct 2551 (June 26, 2015), in which the Court held
that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally vague. Id. Rice argued that Johnson’s invalidation of the ACCA’s residual
clause should be applied to invalidate similar language in Section 4B1.2 of the Sentencing
Guidelines. Id. Thus, Rice maintained, under Johnson, his prior convictions could not be
considered crimes of violence under the Sentencing Guidelines’ career offender provision. The
Eleventh Circuit denied Rice’s application. Order, In re: Rice, Case No. 16-12267 (11th Cir.
June 8, 2016).

The court held that, even assuming Johnson applies to a career offender

designation made under a mandatory Sentencing Guidelines scheme, Rice would remain a career
offender without application of the residual clause of Section 4B1.2. Id. at pp. 4–5. Specifically,
Rice has two previous New York felony convictions, one for robbery in the first degree and one

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for attempted robbery in the first degree, which both qualify as a violent felony under the
elements clause of the career offender provision. Id.
In his second application to file a second or successive Section 2255 motion, Rice
claimed that his sentence violated due process because, in light of Mathis v. United States, ___
U.S. ___, 136 S. Ct. 2243 (June 23, 2016), he does not qualify for an enhancement as a career
offender under United States Sentencing Guidelines §§ 4B1.1 and 4B1.2. Appl., In re: Rice,
Case No. 16-16668 (11th Cir. Oct. 24, 2016). In Mathis, the Supreme Court resolved a dispute
of statutory construction of the ACCA. The Court held that the fact that a statute contains
multiple alternative means of committing the crime does not make the statute divisible if these
means are not alternative elements but rather only factual determinations about an element, and
thus, unnecessary to the jury’s determination of guilt for the crime. Mathis, ___ U.S. at ___, 136
S. Ct. at 2251–54. The Eleventh Circuit rejected Rice’s reliance on Mathis, because the decision
did not announce a new rule of constitutional law made retroactively applicable to cases on
collateral review by the Supreme Court, as required by 28 U.S.C. § 2255(h)(2). Order, In re:
Rice, 16-16668, pp. 2–3 (11th Cir. Nov. 16, 2016). The Eleventh Circuit also rejected Rice’s
reliance on United States v. Jones, 830 F.3d 142 (2d Cir. 2016), because the Second Circuit
Court of Appeals had vacated its decision in Jones, and the decision was not rendered by the
Supreme Court, as required for an announcement of a new rule of constitutional law. Id. at p. 3.
Having been repeatedly rejected by the Southern District of Alabama and the Eleventh
Circuit, Rice has now turned to this Court. In the instant Section 2241 Petition, he once again
attacks the Southern District of Alabama’s sentence. He contends that the sentencing court
improperly utilized his prior convictions for first degree robbery and attempted robbery to
classify him as a career offender. (Doc. 1.) Rice again relies upon the Supreme Court’s decision

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in Johnson and the Second Circuit’s now vacated decision in Jones. (Id. at p. 2.) Respondent
moves to dismiss Rice’s Petition, contending that he does not satisfy the requirements of the 28
U.S.C. § 2255(e) “saving clause” in light of the Eleventh Circuit’s decision in McCarthan v.
Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017). (Doc. 8.) Rice
filed a Response to the Motion to Dismiss. (Doc. 10.)
DISCUSSION
I.

Whether Rice 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). 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

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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, 851 F.3d at 1081.
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

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“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.”); 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

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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
1090.
This case does not present the “limited circumstances” warranting application of the
saving clause. Rice’s claims—that his New York convictions do not qualify as a violent felony
for sentencing purposes and that his sentence violates due process—are the types of claims and
requested relief that Section 2255 encompasses. Thus, he would have been permitted to bring
those claims in a motion to vacate, and Section 2255 provides Rice with an adequate procedure
to test his claim. Indeed, Rice has repeatedly asserted the same arguments he brings in this case
in Section 2255 proceedings before the Southern District of Alabama and the Eleventh Circuit.

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Rice’s argument that those courts have rejected his claims does not change the fact that his
claims are the very type of claims that are cognizable under Section 2255. 1
It appears that, though Rice 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). However, Rice must first obtain permission from the Eleventh Circuit
before filing a second Section 2255 motion. Nevertheless, Rice has available to him an actual
remedy under Section 2255: the right to request permission to file a second or successive Section
2255 motion under Section 2255(h). The fact that the Eleventh Circuit has denied Rice’s
applications to file a second or successive Section 2255 motion does not render the remedy
provided under that statute “unavailable” to him. 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 saving[ ]
clause does not apply.”). As such, Rice cannot rely upon Section 2255(e) to proceed with his
Section 2241 Petition.
Further, Rice’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
1

Rice’s Response to the Motion to Dismiss is largely non-responsive to Respondent’s Motion and
ignores the holding in McCarthan. (Doc. 10.)
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prevent relief, but that bar does not render the motion itself an ineffective or inadequate
remedy.”). Thus, the fact that Rice previously brought a Section 2255 motion and faces the
successiveness bar in Section 2255(h) does not itself render a Section 2255 motion inadequate or
ineffective. Id.; Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir. 2011). 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 Rice an “adequate procedure” to test his conviction and sentence.
This procedure is clearly available to him, as he already filed Section 2255 motions, and he has
sought permission to file a second or successive motion. Consequently, Rice 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 Rice cannot satisfy the saving clause, his claims
are procedurally barred, and the Court cannot reach the merits of his arguments. 2
For all these reasons, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Rice’s Section 2241 Petition.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Rice leave to appeal in forma pauperis. Though Rice 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”).
2

Even if the Court could reach the merits of his arguments, the Supreme Court has held, subsequent to
Rice’s filing in this case, that its holding in Johnson does not apply to the residual clause of the
Sentencing Guidelines. Beckles v. United States, ____ U.S. ____, 137 S. Ct. 886 (Mar. 6, 2017).
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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 Rice’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 Rice in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 8), DISMISS Rice’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 and enter the
appropriate judgment of dismissal. I further RECOMMEND that the Court DENY Rice 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

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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 Rice and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of October,
2017.

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

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