Williams v. Flournoy

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 6 MOTION to Dismiss, DISMISS Williams's 1 Petition for Writ of Habeas Corpus, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that t he Court DENY Williams leave to proceed in forma pauperis on appeal. 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 11/9/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/26/2017. (ca)

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

SHARIFF MARCELLE WILLIAMS,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-73

v.
WARDEN FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Shariff Marcelle Williams (“Williams”), 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), to
which Williams filed a Response, (doc. 9). For the reasons which follow, I RECOMMEND that
the Court GRANT Respondent’s Motion, DISMISS Williams’s Section 2241 Petition, and
DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND the Court DENY
Williams in forma pauperis status on appeal.
BACKGROUND
On January 28, 2013, Williams pleaded guilty to armed bank robbery, in violation of 18
U.S.C. §§ 2113(a) and (d), and brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii), in the United States District Court for the Western
District of Michigan. (Docs. 6-1, 6-4.) He was designated a career offender under the United
States Sentencing Guidelines due to his prior convictions for armed and unarmed robbery.
(Doc. 6-5.) The Western District of Michigan sentenced Williams to a total of 228 months’

imprisonment (144 months for the robbery offense and 84 months for the firearm offense, to be
served consecutively). (Doc. 6-6.)
On June 14, 2013, Williams filed a notice of appeal, pro se, and his trial counsel
subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and a motion to
withdraw. (Doc. 6-1, pp. 9–10.) The United States Court of Appeals for the Sixth Circuit
reviewed the case and counsel’s assessment of the relative merit on appeal, determined that there
were no issues of arguable merit, and affirmed Williams’s convictions and sentence. (Doc. 6-7.)
On March 30, 2016, Williams filed a Motion pursuant to 28 U.S.C. § 2255 in the Western
District of Michigan, attacking his conviction and sentence. (Doc. 6-8.) In support of that
Motion, Williams cited the United States Supreme Court’s decision in Johnson v. United States,
___ U.S. ___, 135 S. Ct. 2551 (2015), striking down the residual clause of the Armed Career
Criminal Act as unconstitutionally vague. (Id.) Williams argued that the court should invalidate
similar language in the career offender provision of the United States Sentencing Guidelines, and
that, therefore, he should no longer qualify as a career offender under the Sentencing Guidelines.
(Id.) The district court denied Williams’s Section 2255 motion based on the Supreme Court’s
decision in Beckles v. United States ___ U.S. ___, 137 S. Ct. 886 (Mar. 6, 2017), which held
that the vagueness analysis of the Armed Career Criminal Act in Johnson does not apply to the
Sentencing Guidelines. (Docs. 6-10, 6-11.)
Having been rejected by his sentencing court, Williams now turns to this Court to attack
his sentence. In the instant Section 2241 Petition, Williams claims that he was “mistakenly
classified as a career offender” when the district court applied a modified categorical approach in
violation of the Supreme Court’s holding in Mathis v. United States, 136 S. Ct. 2243 (2016); and
that he was “mistakenly enhanced under 924(c)(1)(A),” because that statute is unconstitutionally

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vague following Johnson.

(Doc. 1-1, p. 1.) As relief, he asks that this Court “reverse the

enhancements” in his sentence. (Id. at p. 8.)
Respondent moved to dismiss Williams’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. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th
Cir. 2017). (Doc. 6.) Williams filed a Response opposing the Motion to Dismiss. (Doc. 9.)
DISCUSSION
I.

Whether Williams 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

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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
Cir. 2017).
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

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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); 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

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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. (citations omitted). 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. Williams’s claims—that the Western District of Michigan improperly sentenced
him as a career offender—are the types of claims and requested relief that Section 2255
encompasses. His claim for relief, that this Court change his sentence to exclude sentence
enhancements, reveals that he is not attacking the manner in which his sentence is being
executed, but rather the sentence itself. Thus, Williams would have been permitted to bring his

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claims in a Section 2255 motion to vacate. Indeed, Williams challenged his sentence through a
Section 2255 Motion before the Western District of Michigan.

The fact that Williams is

dissatisfied with the outcome of his Motion does not change the fact that Section 2255 provides
him an adequate procedure to test his claims.
Williams’s Response to the Motion to Dismiss is entirely nonresponsive to Respondent’s
arguments and ignore the holding in McCarthan. (Doc. 9.) Williams flatly concedes that he is
attacking his sentence and never makes any effort to meet the parameters of a Section 2241
petition. (Id.) Indeed, Williams does not even cite McCarthan but instead relies upon the fivefactor test of Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1288 (11th Cir. 2013).
(Doc. 9, pp. 4–5.) However, the Eleventh Circuit expressly overruled Bryant and its multifactored test in McCarthan. 851 F.3d at 1096.
Thus, it appears that, though Williams labels his filing a Section 2241 Petition, he is
actually attempting to bring a second or successive Section 2255 motion. However, Williams
must first obtain permission from the Sixth Circuit before filing a second 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). Therefore, Williams 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 Sixth Circuit may deny Williams’s application to file a second

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or successive Petition does not render the remedy “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, Williams cannot rely upon Section
2255(e) to proceed with his Section 2241 Petition.
Further, Williams’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 Williams 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 Williams an “adequate procedure” to test his conviction and
sentence. This procedure is clearly available to him as he already filed a Section 2255 motion.
Moreover, he has an avenue to seek permission to file a second or successive motion from the
Sixth Circuit. Again, merely because the Sixth Circuit may not grant that application does not
change the fact that the type of claim Williams seeks to bring is the type encompassed by Section
2255.

Consequently, Williams 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

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Williams 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 Williams’s Section 2241 Petition.
II.

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

Though

Williams 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).

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Based on the above analysis of Williams’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 Williams in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 6), DISMISS Williams’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 Williams leave to proceed in forma pauperis on appeal.
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

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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 Williams and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 26th day of October,
2017.

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

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