Bankston v. Blaine

Filing 8

Incorrect entry. (csr) Modified on 10/20/2017 (csr).

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

JUSTIN LAVAR MORROW,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-77

v.
JOHN V. FLOURNOY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Justin Morrow (“Morrow”), 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. 10), to which Morrow
filed a Response, (doc. 12). For the reasons which follow, I RECOMMEND that the Court
GRANT Respondent’s Motion, DISMISS Morrow’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 Morrow in forma pauperis status on appeal.
BACKGROUND
On December 22, 2008, Morrow pled guilty to conspiracy to distribute and to possess
with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A)(ii) and 846 (Count 1); and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and (2) (Count 2), in the United States
District Court for the Middle District of Florida. (Docs. 10-3, 10-4, 10-5, 10-6.) Prior to his
entry of guilty plea, the Government filed a 21 U.S.C. § 851 notice of enhanced penalties, which

informed Morrow that he faced a possible mandatory minimum term of 20 years’ imprisonment
as to Count One based on his two prior Florida drug trafficking convictions. (Doc. 10-7.) The
Middle District of Florida sentenced Morrow to a total term of 300 months’ imprisonment (240
months for the drug offense and 60 months for the gun offense, the mandatory minimum for each
count, to be served consecutively). (Doc. 10-8.) Morrow’s plea agreement contained an appeal
waiver, (doc. 10-4, p. 13), and he did not file an appeal. The Government subsequently filed a
motion for downward departure based on Morrow’s substantial assistance, and the Middle
District of Florida granted that motion and reduced Morrow’s total sentence from 300 to 248
months’ imprisonment (188 months as to Count 1 and 60 months as to Count 2, to run
consecutively). (Docs. 10-9, 10-10.)
On May 14, 2010, Morrow filed a motion in the sentencing court pursuant to 28 U.S.C.
§ 2255 attacking his sentence. (Doc. 10-11.) He raised numerous arguments, including claims
that his attorney rendered ineffective assistance of counsel, that the Government violated his
constitutional rights by sentencing him to 120 months of supervised release following his term of
imprisonment, and that the enhancement of his sentence under Section 851 violated the Fifth and
Sixth Amendments and the principle of separation of powers. (Id.) The district court denied
Morrow’s Section 2255 motion. (Docs. 10-12, 10-13.) The court found that his claims were
barred by the appeal and collateral attack waivers in his plea agreement and substantively
meritless. (Id.)
Having been rejected by the Middle District of Florida, Morrow has now turned to this
Court to attack his sentence. In the instant Section 2241 Petition, he once again attacks the
Middle District of Florida’s sentence.

He contends that the sentencing court improperly

classified him as a career offender by using a modified categorical approach, in violation of

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Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (June 23, 2016). (Doc. 1, pp. 6–7.) As
relief, he requests to be resentenced without the career offender enhancement. (Id. at p. 8.)
Respondent moves to dismiss Morrow’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 Court of
Appeals’ decision in McCarthan v. Direction of Goodwill Industries-Suncoast, Inc., 851 F.3d
1076, 1081 (11th Cir. 2017). (Doc. 10.) Morrow filed a Response opposing the Motion to
Dismiss. (Doc. 12.)
DISCUSSION
I.

Whether Morrow 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

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§ 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

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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 v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999) 1 (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
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Wofford was overruled on other grounds by McCarthan.
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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.3d 578, 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 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. Morrow’s claim—that the Middle District of Florida improperly sentenced him as
a career offender—is the type of claim 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 the sentence itself. Thus, he would have been permitted to bring

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his claims in a motion to vacate, and Section 2255 provides Morrow with an adequate procedure
to test his claim. Indeed, Morrow challenged his sentence through a Section 2255 Motion before
the Middle District of Florida. The fact that the Middle District of Florida rejected his claims
does not change the fact that Morrow’s claim is the type of claim cognizable under Section 2255.
Morrow’s Response to the Motion to Dismiss is entirely non-responsive to Respondent’s
arguments and ignores the holding in McCarthan. (Doc. 12.) Throughout his Response, he flatly
concedes that he is attacking his sentence.
It appears that, though Morrow 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, Morrow must first obtain permission from the Eleventh Circuit
before filing a second Section 2255 motion. Nevertheless, Morrow 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
Morrow’s application to file a second or successive Section 2255 motion 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

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apply.”). As such, Morrow cannot rely upon Section 2255(e) to proceed with his Section 2241
Petition.
Further, Morrow’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 Morrow 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 Morrow 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. Again, merely because the Eleventh Circuit may not grant that application
does not change the fact that the type of claim Morrow seeks to bring in this Petition is the type
encompassed by Section 2255. Consequently, Morrow 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 Morrow 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 Morrow’s Section 2241 Petition.

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II.

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

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 Morrow’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 Morrow in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 10), DISMISS Morrow’s Petition for Writ of Habeas Corpus, (doc. 1), and

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DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal. I further RECOMMEND that the Court DENY Morrow 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 Morrow 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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