Ford v. Flournoy

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Ford's Section 2241 1 Petition, DIRECT the Clerk to CLOSE this case, and DENY Ford in forma pauperis status on appeal. The Court ORDERS any party seeking to object to th is 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
BRUNSWICK DIVISION

MARK RAYMOND FORD,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-83

v.
J.V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Mark Raymond Ford (“Ford”), 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 Response. (Doc. 10.) For the reasons which
follow, the Court DISMISSES AS MOOT Ford’s Motion for Extension of Time to File a Reply,
(doc. 11).

Additionally, I RECOMMEND that the Court DISMISS Ford’s Section 2241

Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Ford in forma pauperis
status on appeal.
BACKGROUND
Ford was convicted in the United States District Court for the Middle District of Florida
of conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846;
two counts of possession with intent to distribute cocaine base and cocaine in violation of 21
U.S.C. § 841 (a)(1)(2); and possession of firearms and ammunition by a convicted felon in
violation of 18 U.S.C. § 922(a)(2). (Doc. 10-1, pp. 1, 6.) On September 28, 1999, the Middle
District of Florida sentenced Ford to a term of life imprisonment. (Id.) Ford filed a Notice of

Appeal to the Court of Appeals for the Eleventh Circuit, (doc. 10-2, p. 28), and the Eleventh
Circuit affirmed his conviction and sentence (id. at p. 31.)
On May 21, 2003, Ford filed an Amended Motion, pursuant to 28 U.S.C. § 2255, in the
Middle District of Florida attacking his conviction and sentence. (Id. at pp. 53–56.) The district
court denied Ford’s Section 2255 Motion, and the Eleventh Circuit subsequently denied Ford’s
Motion for Certificate of Appealability. (Id. at p. 56.)
Having been rejected by his sentencing court and the Eleventh Circuit, Ford now turns to
this Court to attack his sentence. In the instant Section 2241 Petition, Ford claims that he is
being “illegally detained.” (Doc. 1, p. 6.) He contends that the sentencing court’s judgment of
commitment did not properly specify separate sentences for each count of his conviction and
that, therefore, his sentence “is vague and void.”

(Id.)

Ford also, without cognizable

explanation, contends that the Federal Bureau of Prisons (“BOP”) has engaged in rulemaking.
(Id. at p. 8.) As relief, Ford asks this Court to order that he be released from detention. (Id. at
p. 9.)
Respondent argues that the Court should dismiss Ford’s Petition because 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. 10.)
DISCUSSION
I.

Whether Ford 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

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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

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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,
“[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

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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

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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. Ford’s claims—that the Middle District of Florida’s sentence is impermissibly
vague and void—are the types of claims and requested relief that Section 2255 encompasses.
His claim for relief, that this Court release him due to the invalidity of his sentence, reveals that
he is not attacking the manner in which his sentence is being executed but, rather, the sentence
itself. 1 Thus, he must bring his claims in a motion to vacate. Indeed, Ford challenged his
sentence through a Section 2255 Motion before the Middle District of Florida. The fact that
Ford 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. In fact, his claims are precisely the type
contemplated by Section 2255.
Thus, even though Ford labels his filing a Section 2241 Petition, it is apparent that 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

While Ford’s Petition includes a vague allegation that the BOP has improperly engaged in rulemaking,
he doesn’t offer any cogent argument in support of this claim. Regardless, the substance of Ford’s
allegations reveals that he takes issue with the Middle District of Florida’s sentence, not the manner in
which the BOP has carried out his sentence.
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(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, Ford must first obtain permission from the Eleventh Circuit
before filing a second Section 2255 motion. Nevertheless, Ford 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 may deny Ford’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 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, Ford cannot rely
upon Section 2255(e) to proceed with his Section 2241 Petition.
Further, Ford’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 Ford 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, 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).

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Section 2255 provides Ford 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 Eleventh
Circuit.

Consequently, Ford 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
Ford 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 Ford’s Section 2241 Petition.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Ford leave to appeal in forma pauperis. Though Ford 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. Ford, 490 U.S. 319, 327 (1989); Carroll v. Gross,

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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 Ford’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 Ford in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, the Court DISMISSES AS MOOT Ford’s Motion for Extension
of Time to File a Reply, (doc. 11). Additionally, I RECOMMEND that the Court DISMISS
Ford’s Section 2241 Petition, (doc. 1), DIRECT the Clerk of Court to CLOSE this case, and
DENY Ford 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 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

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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 Ford and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of October,
2017.

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

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