Baptiste v. Flournoy
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 6 Motion, DISMISS Baptiste's 1 Petition for Writ of Habeas Corpus, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Baptiste 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 11/2/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/19/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 2:17-cv-49
J.V. FLOURNOY, Warden,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Wayne Baptiste (“Baptiste”), 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. 6), and Baptiste filed a
Response, (doc. 8). For the reasons which follow, I RECOMMEND that the Court GRANT
Respondent’s Motion, DISMISS Baptiste’s Section 2241 Petition, DIRECT the Clerk of Court
to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Baptiste in
forma pauperis status on appeal.
A jury in the United States District Court for the Southern District of Florida convicted
Baptiste of conspiring to possess with intent to distribute cocaine and cocaine base. (Doc. 6-3.)
On June 6, 2000, the Southern District of Florida sentenced Baptiste to 360 months’
Baptiste appealed, and the Eleventh Circuit Court of Appeals
affirmed his convictions and sentence. (Doc. 6-5.)
Since his convictions, Baptiste has brought numerous post-conviction motions and
petitions attacking his conviction and sentence obtained in the Southern District of Florida in the
various districts where he has been confined and in the Eleventh Circuit. See, e.g., Pet., Baptiste
v. Pearson, 2:06-cv-2305 (W.D. Tenn. May 8, 2006), ECF No. 1; Mot., Baptiste v. United States,
1:08-cv-23070 (S.D. Fla. Nov. 4, 2008), ECF No. 1; Pet., Baptiste v. Rivera, 1:10-cv-2526
(D.S.C. Sep. 29, 2010), ECF No. 1; Mot., Baptiste v. United States, 1:16-cv-22660 (S.D. Fla.
June 25, 2016), ECF No. 1; Appl., In re Baptiste, No. 11-13321 (11th Cir. July 25, 2011); Appl.,
In re Baptiste, No. 16-12477 (11th Cir. May 16, 2016); Appl., In re Baptiste, No. 16-13589 (11th
Cir. June 14, 2016).
Undeterred by his well-established track record of defeat, Baptiste has now filed yet
another Section 2241 Petition in this Court attacking his sentence on numerous grounds.
His contentions include: that the sentencing court applied an invalid mandatory
Guideline range, in violation of his rights under the Fifth and Sixth Amendments; that the court
labeled him a career offender based on a “non existent” predicate offense and thereby improperly
enhanced his sentence; and that this Court should revisit his sentence by applying the United
States Sentencing Guidelines as advisory rather than mandatory. (Id. at pp. 7–8.) As relief,
Baptiste requests “to be sentence [sic] to a base offense level of 36 guideline range of 324
months or immediate release.” (Id. at p. 8.)
Respondent moves to dismiss Baptiste’s Petition, contending that he does not satisfy the
requirements of 28 U.S.C. § 2255(e)’s “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. 6.) Baptiste filed a Response to the Motion to Dismiss. (Doc. 8.)
Whether Baptiste 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
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
“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
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. Baptiste’s claims go to the heart of his sentence and are the very types of claims
that Section 2255 encompasses. Indeed, as his requested relief, he asks that this Court resentence
him or grant him immediate release. (Doc. 1, p. 8.) He does not seek to modify the execution of
his sentence or the nature of his confinement but instead directly challenges the validity of his
sentence. Thus, he would have been permitted to bring his claims in a motion to vacate or set
aside, and Section 2255 provides Baptiste with an adequate procedure to test those claims.
Indeed, Baptiste has repeatedly asserted many of the same arguments he brings in this Petition in
Section 2255 proceedings before the Southern District of Florida and the Eleventh Circuit.
Baptiste’s Response to the Motion to Dismiss is largely non-responsive to the Motion and
ignores the holding in McCarthan. (Doc. 8.) In his Petition, Baptiste directly challenges the
Southern District of Florida’s sentencing decision and requests that this Court resentence him.
However, in his Response, he somehow contends that Respondent has “boldly
presumed” that he is “challenging the validity of his sentence.” (Doc. 8, pp. 1–2.) It is neither
bold nor erroneous to state that Baptiste challenges the validity of his sentence when that is
exactly what he does throughout his Petition.
Baptiste’s Response also demonstrates either a disregard for or an ignorance of the
English language. He attempts to fit his Petition into the parameters set by McCarthan by
claiming that “his challenges are to the way the District Court executed his sentence.” (Id. at
p. 2.) However, the word “execute” means to carry out fully and to put completely into effect. 1
The substance of Baptiste’s arguments (as well as the remainder of his Response) makes clear
that his gripe is not with those who are carrying out his sentence or with the manner his sentence
is being put into effect.
Rather, he takes issue with the district court’s imposition of his
sentence. 2 Consequently, Baptiste does not cast a proper Section 2241 Petition simply by
misusing the word “executed.”
It appears that, though Baptiste 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.
“Execute”, https://www.merriam-webster.com, (last visited Oct. 19, 2017).
Indeed, in his Response, Baptiste also states that he challenges “the way the District Court in Miami
executed and imposed sentence upon him.” (Doc. 8, p. 1 (emphasis added).)
28 U.S.C. § 2255(h). However, Baptiste must first obtain permission from the Eleventh Circuit
before filing a second Section 2255 motion. Nevertheless, Baptiste 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
Baptiste’s applications to file a second or successive Section 2255 motion does not render the
remedy afforded by 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, Baptiste cannot rely upon Section 2255(e) to proceed with his
Section 2241 Petition.
Further, Baptiste’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 Baptiste 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.3d1293, 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 Baptiste 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 from the Eleventh Circuit to file a second or successive motion.
Consequently, Baptiste cannot show that Section 2255’s remedy is “inadequate or ineffective” to
challenge his sentence, and he “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 Baptiste
cannot satisfy the saving clause, his claims are procedurally barred, and the Court cannot reach
the merits of his arguments.
For these reasons, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Baptiste’s Section 2241 Petition.
Leave to Appeal in Forma Pauperis
The Court should also deny Baptiste leave to appeal in forma pauperis. Though Baptiste
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 Baptiste’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 in forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 6), DISMISS Baptiste’s Petition for Writ of Habeas Corpus, filed pursuant to
28 U.S.C. § 2241, (doc. 1), DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY Baptiste 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 Baptiste and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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