Jeanty v. Maye

Filing 12

REPORT AND RECOMMENDATION; RECOMMENDS that the District Court DISMISS 1 Petitioner Nicolas Francois Jeanty's Application for Writ of Habeas Corpus. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
NICOLAS FRANCOIS JEANTY,
Petitioner,
V.
CLAUDE MAYE, WARDEN,
FCI BASTROP,
Respondent

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A-11-CA-928 SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court are: Petitioner Nicolas Francois Jeanty’s Application for a Federal Writ of

Habeas Corpus Brought Pursuant to 28 U.S.C. § 2241 (Clerk’s Doc. No. 1); the Government’s
Response (Clerk’s Doc. No. 9); and Jeanty’s Reply (Clerk’s Doc. No. 11). The District Court
referred the above motions to the undersigned Magistrate Judge for a determination pursuant to 28
U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District Court
for the Western District of Texas, Local Rules for the Assignment of Duties to United States
Magistrate Judges.
I. PROCEDURAL HISTORY
On May 5, 2005, Petitioner Nicolas Francois Jeanty, Jr. (“Jeanty”), and Vladimir Perodin,
were charged in a two-count indictment in the Southern District of Florida with: conspiring to
possess with intent to distribute five (5) kilograms or more of a mixture and substance containing
a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(l) and 21 U.S.C. § 846 (Count
One); and intentionally attempting to possess with the intent to distribute five (5) kilograms of a
mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C.

§ 841(a)(l) (Count Two). On February 6, 2009, the United States filed an Information of Intent to
Seek § 851 Enhanced Penalties Due to Prior Convictions.
On February 13, 2009, following a 5-day trial, a jury returned a verdict of guilty against
Jeanty on both counts with regard to distributing 500 grams or more of cocaine. On February 17,
2009, the government filed a Notice of Filing Indictment with Reduced Charges that Went to Jury
for Deliberation—charging Jeanty with 500 grams or more of cocaine rather than five (5) kilograms
of cocaine. On April 23, 2009, the district court sentenced Jeanty to a 120-month term of
imprisonment on each count [to be served concurrently], followed by an eight-year term of
supervised release, and ordered that Jeanty pay a $200 mandatory assessment fee. On April 24,
2009, Jeanty timely filed a notice of appeal of the court’s judgment. Subsequently, the Eleventh
Circuit Court of Appeals affirmed Jeanty’s conviction and sentence in United States v. Jeanty, No.
09-12210, slip op. (11th Cir., December 18, 2009).
On June 7, 2010, Jeanty filed a motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255. In his motion, Jeanty argued that: (1) he was denied the effective assistance of
counsel because his attorney should have investigated the case to establish that a February 23, 2005,
telephone call could not have occurred in the informant’s (“Alee”) presence because the investigating
agent’s report showed that the informant had already returned to his vehicle and departed the area,
negating the possibility that co-conspirator Perodin could have overheard the conversation; (2) the
prosecutor altered the transcript after Jeanty rejected a plea offer; (3) and the prosecutor’s closing
argument was improper regarding the defense expert’s testimony and constituted improper vouching
of government witnesses. On July 21, 2010, the district court denied Jeanty’s § 2255 motion.
On August 23, 2010, the court issued an amended final judgment and order denying Jeanty’s
§ 2255 motion, after considering Jeanty’s August 16, 2010, Motion for Rehearing. In Jeanty’s Reply
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to the district court’s initial final judgment and order denying his§ 2255 motion, Jeanty added 24
new allegations which the district court addressed, including an argument that there was insufficient
evidence at trial to establish a conspiracy rather than a buyer-seller relationship. The district court
then again denied Jeanty’s motion for § 2255 relief. On August 30, 2010, Jeanty filed a notice of
appeal of the district court’s denial of his § 2255 motion. On October 5, 2010, the Eleventh Circuit
Court of Appeals dismissed Jeanty’s appeal for failure to pay the filing and docketing fees as
required by 11th Cir. R.42-1(b).
On October 27, 2011, Jeanty filed the instant Application for a Federal Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241.
II. ANALYSIS
Jeanty claims that § 2241 is the proper vehicle by which to bring his claim because he is
“actually innocent” and thereby subject to § 2241's “savings clause.” Jeanty claims he is “actually
innocent” because: (1) he did not conspire with Perodin before Perodin became a government
informant on February 24, 2005; thus, the government has failed to established that they violated 21
U.S.C. § 846–-conspiracy to possess 500 or more grams of cocaine with intent to distribute ; and
(2) once Perodin became a government informant, any agreement between them became void.
Having reviewed the Petition, the undersigned concludes that Jeanty’s claims, which allege
errors occurring at or prior to sentencing, are not properly brought pursuant to 28 U.S.C. § 2241, but
should be brought pursuant to 28 U.S.C. § 2255. A § 2241 petition on behalf of a sentenced prisoner
must attack the manner in which a sentence is carried out or the prison authorities’ determination of
its duration, and must be filed in the same district where the prisoner is incarcerated. Pack v. Yusuff,
218 F.3d 448, 451 (5th Cir. 2000). In contrast, a § 2255 motion is the proper means of attacking
errors that occurred “at or prior to sentencing.” Id. A § 2255 motion must be filed in the court that
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sentenced the defendant, which in this case is the Southern District of Florida. Id. The Fifth Circuit
has stated that “[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute
for a motion under [section] 2255.” Id. (quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979)). Thus, a § 2241 petition that seeks to challenge the validity of a federal sentence must either
be dismissed or construed as a § 2255 motion. Pack, 218 F.3d at 452.
As noted earlier, § 2255 “contains a ‘savings clause,’ which acts as a limited exception to this
general rule.” Id. The “savings clause” provision in 28 U.S.C. § 2255 states:
An application for a writ of habeas corpus on 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 (emphasis added). “[T]he burden of coming forward with evidence to show the
inadequacy or ineffectiveness of a motion under § 2255 rests squarely on the petitioner.” Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, 122 S.Ct. 476 (2001). A petitioner seeking
relief under the § 2255 savings clause must demonstrate three things: (1) his claim is based on a
retroactively applicable Supreme Court decision; (2) the Supreme Court decision establishes that he
was “actually innocent” of the charges against him because the decision decriminalized the conduct
for which he was convicted; and (3) his claim would have been foreclosed by existing circuit
precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition. Reyes-Requena
v. United States, 243 F.3d 893, 904 (5th Cir. 2001); see also Jeffers, 253 F.3d at 830. “[T]he core
idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law.”
Reyes-Requena, 243 F.3d at 903. “‘Actual innocence’ for the purposes of our savings clause test
could only be shown if [petitioner] could prove that based on a retroactively applicable Supreme
Court decision, he was convicted for conduct that did not constitute a crime.” Jeffers, 253 F.3d at
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831 (holding that petitioner could not rely upon savings clause because retroactive Supreme Court
decision had no effect on whether the facts in petitioner’s case would support his conviction for a
substantive offense).
Jeanty has not identified any Supreme Court decision that retroactively applies to his case.
Nor has he asserted that he has been convicted of a nonexistent offense, or that his claims were
foreclosed by circuit law at the time when the claims should have been raised at trial, on appeal, or
in his first first § 2255 petition. Reyes-Requena, 243 F.3d at 903. Jeanty arguments clearly do not
fall within the “limited exception” found in the savings clause. See Christopher v. Miles, 342 F.3d
378, 381 (5th Cir. 2003). Jeanty has thus failed to carry his burden and failed to establish the
inadequacy or ineffectiveness of a motion under § 2255 and his § 2241 petition may not be
entertained by this Court. Jeffers, 253 F.3d at 830. Accordingly, the undersigned Magistrate Judge
finds that this cause of action should be dismissed.
III. RECOMMENDATION
The undersigned RECOMMENDS that the District Court DISMISS Petitioner Nicolas
Francois Jeanty’s Application for a Federal Writ of Habeas Corpus Brought Pursuant to 28
U.S.C. § 2241 (Clerk’s Doc. No. 1).
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
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shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 1st day of June, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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