Deorio v. Flournoy

Filing 12

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 9 MOTION, DISMISS Deorio's Section 2241 1 Petition, and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. It is also RECOMMENDED that the Court DENY Deorio 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 11/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/20/2017. (csr)

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

SAMUEL DEORIO,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-89

v.
VIC FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Samuel Deorio (“Deorio”), 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. 9), to which Deorio
filed a Response, (doc. 11). For the reasons which follow, I RECOMMEND that the Court
GRANT Respondent’s Motion, DISMISS Deorio’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 Deorio in forma pauperis status on appeal. 1
BACKGROUND
On April 25, 2000, a jury in the Southern District of Florida found Deorio guilty of
conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; use of a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Docs. 9-3,
9-4, 9-5.) The Southern District of Florida sentenced Deorio to a total term of 322 months’
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The Court GRANTS Deorio’s Motion to Exceed Page Limits. (Doc. 2.) The Court has considered the
entirety of Deorio’s pleadings when ruling on his Section 2241 Petition and Respondent’s Motion to
Dismiss.

imprisonment. (Doc. 9-5.) Deorio filed a direct appeal, and the Eleventh Circuit Court of
Appeals ultimately affirmed his convictions and sentence. United States v. Deorio, 45 F. App’x
876 (11th Cir. 2002); (see also doc. 9-6.)
On August 20, 2002, (while his direct appeal was still pending), Deorio filed a motion in
the Southern District of Florida, pursuant to 28 U.S.C. § 2255, attacking his conviction and
sentence. (Docs. 9-7, 9-8.) Deorio argued that the district court lacked jurisdiction to prosecute
him in federal court because the drug offenses took place on private property, not on a federal
enclave. (Id.) After the Eleventh Circuit issued its mandate on October 16, 2002, the district
court denied Deorio’s Section 2255 motion, finding that his claim was meritless. (Docs. 9-9, 910.)
On June 20, 2016, Deorio filed an application for leave to file a second or successive
Section 2255 motion with the Eleventh Circuit based on the United States Supreme Court’s
decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (June 26, 2015). 2 (Doc. 911.) Deorio also filed another Section 2255 motion in the Southern District of Florida seeking to
vacate his sentence based on Johnson. (Docs. 9-13, 9-14.) The district court stayed the Section
2255 motion pending the resolution of Deorio’s application with the Eleventh Circuit. (Docs. 915, 9-16.) On July 20, 2016, the Eleventh Circuit denied Deorio’s application for leave to file a
successive Section 2255 motion. (Doc. 9-17.) The court held that, though Deorio may have
made a prima facie showing that he falls under the scope of the newly-announced rule in

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In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act
(“ACCA”) as unconstitutionally vague and found that increasing a sentence under that clause violates the
Constitution’s guarantee of due process. Johnson, ___ U.S. at ___, 135 S. Ct. at 2557–58, 2563.
However, the Supreme Court clarified that, in holding that the residual clause is void, it did not call into
question the application of the elements clause and the enumerated crimes clause of the ACCA’s
definition of a violent felony. ___ U.S. at ___, 135 S. Ct. at 2563. The Supreme Court subsequently
decided in Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (Apr. 18, 2016), that Johnson
announced a new rule of substantive law that applies retroactively to cases on collateral review.
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Johnson, the application of Johnson would have no effect on his actual sentence under the
concurrent sentence doctrine. (Id. at pp. 7–8.) Specifically, the court found that even if, under
Johnson, the ACCA enhancement were removed from Deorio’s sentence for being a felon in
possession of a firearm, he would still be subject to a concurrent sentence of 262 months’
imprisonment on his drug-conspiracy conviction, because he qualified as a career offender based
on two predicate crimes of violence or controlled-substance offenses: cocaine trafficking and
aggravated battery. (Id.) Following the Eleventh Circuit’s denial of Deorio’s application, the
district court dismissed his Section 2255 motion. (Doc. 9-18.)
Having been rejected by the Southern District of Florida and the Eleventh Circuit, Deorio
has now turned to this Court to attack his sentence. In the instant Section 2241 Petition, he once
again contends that Johnson compels that he be resentenced without the armed career criminal
enhancement. (Doc. 1.) As relief, he requests to be resentenced without a career offender
enhancement. (Id. at p. 8.)
Respondent moved to dismiss Deorio’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, 1081
(11th Cir. 2017). (Doc. 9.) Deorio filed a Response opposing the Motion to Dismiss. (Doc. 11.)
DISCUSSION
I.

Whether Deorio 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

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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, 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.

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1:15-CV-00311-AKK, 2015 WL 1910328, at *6 (N.D. Ala. Apr. 27, 2015), appeal dismissed,
(Oct. 28, 2015) (quoting Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999) 3 (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
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Wofford was overruled on other grounds by McCarthan.
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detention.’” Id. (quoting Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1278 (11th
Cir. 2014) (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. Deorio’s claims—that the Southern District of Florida improperly sentenced him
as a career offender and that Johnson requires that he be resentenced—are the types of claims
and requested relief that Section 2255 encompasses. His claim for relief, that he be resentenced,
reveals that he is not attacking the manner in which his sentence is being executed but, rather, the
sentence itself. Thus, he would have been permitted to bring his claims in a motion to vacate,
and Section 2255 provides Deorio with an adequate procedure to test his claim. Indeed, Deorio
challenged his sentence through a Section 2255 motion before the Southern District of Florida,
and he sought leave to file a second or successive Section 2255 Motion from the Eleventh
Circuit. In those pleadings, he raised the same claims he raises in this Petition. Thus, he has
acknowledged that the claims he asserts and the relief he seeks are the type of claims and relief
encompassed by Section 2255.
In his Response to the Motion to Dismiss, Deorio acknowledges that he “may not be able
to meet the stiff test devised in McCarthan”, but he claims that he should still be allowed to
proceed under Section 2241 because the Eleventh Circuit “rendered [Section 2255 relief]
inadequate or ineffective . . . by denying him the permission stages on grounds not authorized by
statute.” (Doc. 11, p. 8.) This Court cannot ignore the holding in McCarthan, as Deorio

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requests. Furthermore, regardless of the merits of Deorio’s dissatisfaction with the Eleventh
Circuit’s denial of his request for permission to file a second or successive Section 2255 motion,
that dissatisfaction cannot serve as a basis for allowing him to proceed under the saving clause.
It appears that, though Deorio 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, Deorio must first obtain permission from the Eleventh Circuit
before filing a second Section 2255 motion. Nevertheless, Deorio 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 Deorio’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, Deorio cannot
rely upon Section 2255(e) to proceed with his Section 2241 Petition.
Further, Deorio’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

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inadequate remedy.”). Thus, the fact that Deorio 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 Deorio an “adequate procedure” to test his conviction and
sentence. This procedure is clearly available to him as he already filed Section 2255 motions.
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 that application does
not change the fact that the type of claim Deorio seeks to bring is the type encompassed by
Section 2255. Consequently, Deorio 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
Deorio 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 Deorio’s Section 2241 Petition.
II.

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

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

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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 Deorio’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 Deorio in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 9), DISMISS Deorio’s Petition for Writ of Habeas Corpus, (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 Deorio leave to proceed in forma
pauperis.

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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 Deorio and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of October,
2017.

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

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