Vanover v. Flournoy

Filing 12

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 8 MOTION to Dismiss, DISMISS Vanover's 1 Petition for Writ of Habeas Corpus, and DIRECT the Clerk of CLOSE this case. Its is further RECOMMENDED that t he Court DENY Vanover leave to proceed in forma pauperis status 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 a nd Recommendation is entered. (Objections to R&R due by 11/9/2017). The Court GRANTS Vanover's 11 MOTION to Add Pages re 10 Response to Motion. ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/26/2017. (ca) Modified on 10/26/2017 (ca).

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

SHELTON VASSER VANOVER,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-74

v.
WARDEN VICTOR FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Shelton Vasser Vanover (“Vanover”), 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 Vanover filed a Response (doc. 10). 1 For the reasons which follow, I RECOMMEND
that the Court GRANT Respondent’s Motion, DISMISS Vanover’s Section 2241 Petition, and
DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND the Court DENY
Vanover in forma pauperis status on appeal.
BACKGROUND
On September 20, 2012, Vanover pleaded guilty to three counts of distribution of crack
cocaine in the United States District Court for the Northern District of Florida. (Docs. 8-1, 8-3,
8-4.) The court sentenced Vanover to a total of 188 months’ imprisonment on all counts to run
concurrently. (Doc. 8-4.) Vanover filed a Notice of Appeal to the United States Court of
Appeals for the Eleventh Circuit, but he subsequently dismissed that appeal. (Doc. 8-1, p. 5–6.)
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The Court GRANTS Vanover’s Motion to Add Pages. (Doc. 11.) The Court has considered the
entirety of Vanozer’s pleadings when issuing this Report and Recommendation.

On April 2, 2013, Vanover filed a Motion, pursuant to 28 U.S.C. § 2255, in the Northern
District of Florida attacking his sentence. (Docs. 8-5, 8-6, 8-7.) The district court denied
Vanover’s Section 2255 Motion. (Docs. 8-8, 8-9, 8-10.) Vanover recently requested permission
from the Eleventh Circuit to file a second or successive Section 2255 motion. (Doc. 8-11.) In
his Application, Vanover sought to challenge his sentencing court’s classification of him as a
career offender under United States Sentencing Guidelines Section 4B1.1. (Id.) He contended
that this classification should be overturned in light of Mathis v. United States, ___ U.S.___, 136
S. Ct. 2243 (2016), and Welch v. United States, ___ U.S.___, 136 S. Ct. 1257 (2016). (Id.) The
Eleventh Circuit rejected his Application and specifically noted that Mathis was not a new rule
of constitutional law made applicable to cases on collateral review. (Id.)
Having been rejected by his sentencing court and the Eleventh Circuit, Vanover now
turns to this Court to attack his sentence. In the instant Section 2241 Petition, Vanover claims
that the Northern District of Florida erred in determining that he was a career offender under
Section 4B1.1. (Doc. 1, pp. 6–8.) As he did in his application before the Eleventh Circuit,
Vanover relies upon the Supreme Court’s holding in Mathis. (Id. at p. 7.) As relief, Vanover
asks that this Court resentence him without the career offender enhancement. (Id. at p. 8.)
Respondent moved to dismiss Vanover’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. 8.) Vanover filed a Response opposing the Motion to Dismiss. (Docs. 10, 11.)

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DISCUSSION
I.

Whether Vanover 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:

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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
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,

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“[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
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

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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. Vanover’s claims—that the Northern District of Florida improperly sentenced
him as a career offender and that his sentence should be revisited—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 Vanover is not attacking the manner in
which his sentence is being executed but, rather, the sentence itself. Thus, Vanover would have
been permitted to bring his claims in a Section 2255 motion to vacate.

Indeed, Vanover

challenged his sentence through a Section 2255 motion before the Northern District of Florida,
and sought permission to file a second Section 2255 motion from the Eleventh Circuit. The fact
that Vanover 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.

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Vanover’s Response to the Motion to Dismiss is entirely nonresponsive to Respondent’s
arguments and ignores the holding in McCarthan. (Docs. 10, 11.) Rather than focusing on
whether he can proceed pursuant to Section 2241, he primarily offers arguments as to the merits
of his claims.

Throughout his response, Vanover flatly concedes that he is attacking his

sentence, and never makes any effort to meet the parameters of a Section 2241 petition. (Doc.
10.) In essence, Vanover’s Response boils down to an argument that, because his claims have
been unavailing in his Section 2255 Motion, he must be allowed to proceed under Section 2241.
As laid out above, this is not the gauge of whether a Petitioner has filed a proper Section 2241
Petition.
Thus, even though Vanover labels his filing a Section 2241 Petition, it is apparent that he
is actually attempting to bring a second or successive Section 2255 motion. However, Vanover
must first obtain permission from the Eleventh 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, Vanover 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 previously denied Vanover’s application
to file a second 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

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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, Vanover cannot rely upon
Section 2255(e) to proceed with his Section 2241 Petition.
Further, Vanover’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 Vanover 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 Vanover an “adequate procedure” to test his conviction and
sentence. Moreover, he has an avenue to seek permission to file a second or successive motion
from the Eleventh Circuit. Again, merely because the Eleventh Circuit did not grant his prior
application does not change the fact that the type of claim Vanover seeks to bring is the type
encompassed by Section 2255. Consequently, Vanover 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 Vanover cannot satisfy the saving clause, his claims are procedurally barred, and
the Court cannot reach the merits of his arguments.

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For all these reasons, I RECOMMEND the Court GRANT Respondent’s Motion to
Dismiss and DISMISS Vanover’s Section 2241 Petition.
II.

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

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. Vanover, 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 Vanover’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 Vanover in forma pauperis status on appeal.

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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 8), DISMISS Vanover’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 Vanover 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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Vanover 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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