United States District Court, N.D. Alabama, Western Division
K. KALLON, UNITED STATES DISTRICT JUDGE
a habeas corpus case filed pursuant to 28 U.S.C. § 2241
and the “savings clause” of 28 U.S.C. §
2255(e), by Maurice Barr, pro se, a federal prisoner
at the Federal Correctional Institution in Talladega,
Alabama. Doc. 1. In his petition, Barr challenges his 1997
sentence imposed by the United States District Court for the
Northern District of Mississippi, after Barr pleaded guilty
to federal drug charges. Id. The magistrate judge to
whom the action was referred entered a Report and
Recommendation, see 28 U.S.C. § 636(b)(1),
proposing that the petition be dismissed for want of
jurisdiction. Doc. 3. Barr has now filed timely objections to
the R&R. Doc. 4. Within those objections is a motion in
the alternative to transfer the action to the sentencing
court in lieu of dismissing the petition. Id. at
4-7. For the reasons that follow, the court concludes that
the magistrate judge's R&R is due to be accepted,
that the action is due to be dismissed for lack of
jurisdiction, and that the motion to transfer is due to be
habeas petition, Barr argues that he was improperly sentenced
as a career offender under the then-mandatory United States
Sentencing Guidelines. Specifically, he contends that, based
on the Supreme Court's recent decision in Mathis v.
United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), he
is “actually innocent” of his Guidelines career
offender enhancement, on the theory that his prior
Mississippi state conviction for distribution of a controlled
substance, in violation of Miss. Code § 41-29-139, was
erroneously counted as a felony conviction for “a
controlled substance offense” as defined in U.S.S.G.
magistrate judge concluded that this court lacks habeas
jurisdiction to hear such a claim attacking a federal
sentence. In support, the magistrate judge relied on two
en banc decisions of the Eleventh Circuit Court of
Appeals: Gilbert v. United States, 640 F.3d 1293
(11th Cir. 2011) (en banc), and McCarthan v. Director of
Goodwill Indust.-Suncoast, Inc., 851 F.3d 1076 (11th
Cir. 2017) (en banc). In Gilbert, the court held
that § 2255(e)'s savings clause does not extend
habeas jurisdiction to claims by federal prisoners, like
Barr, who contend they were improperly sentenced under the
Guidelines, but still within the statutory maximum for their
offenses. 640 F.3d at 1295. And in McCarthan, the
court interpreted the scope of § 2255(e)'s savings
clause as being even narrower still, holding that the statute
authorizes habeas jurisdiction “only when [a motion to
vacate a federal sentence under 28 U.S.C. § 2255] cannot
remedy a particular kind of claim.” 851 F.3d at 1099.
Thus, the McCarthan court held that, even where a
federal prisoner claims that a retroactively applicable,
circuit-precedent-busting Supreme Court decision establishes
that he was improperly sentenced above the statutory maximum,
habeas review is foreclosed because such a claim can
generally be raised in a § 2255 proceeding, even if it
might have clearly had no chance of succeeding at the time.
851 F.3d at 1099-1100.
objects to the R&R, arguing that the magistrate judge
failed to discuss whether the Supreme Court's decision in
Mathis is retroactively applicable to cases on
collateral review. Citing a host of lower federal court
decisions from outside the Eleventh Circuit, Barr also
suggests that there exists “a circuit split on the
appropriate remedy” for a claim based on
Mathis. Doc. 4 at 1. Ultimately, he contends that
this court should adopt the approach taken by the Seventh
Circuit Court of Appeals, which he posits would allow his
Mathis claim to be heard in habeas under §
2241. Id. at 4.
for Barr, this court is bound to adhere to the holdings of
published decisions of the Eleventh Circuit Court of Appeals
unless and until they are overruled by that court sitting en
banc or they are abrogated by the Supreme Court of the United
States. See Smith v. GTE Corp., 236 F.3d 1292, 1300
n.8 (11th Cir. 2001); Cargill v. Turpin, 120 F.3d
1366, 1386 (11th Cir. 1997). Because the Eleventh Circuit has
spoken clearly on the relevant issues in Gilbert and
McCarthan, that is the end of the discussion. In
short, this court must follow Gilbert and
McCarthan regardless of whether other circuit courts
of appeals or, indeed, this court itself, might agree with
their reasoning. See Springer v. Wal-Mart Associates'
Group Health Plan, 908 F.2d 897, 900 n.1 (11th Cir.
1990) (“We need hardly add that even if there were a
relevant circuit split, the district court is bound by
controlling Eleventh Circuit precedent.”).
alternative, Barr moves the court to, in lieu of dismissing
his habeas petition for lack of jurisdiction, transfer the
action to the federal district court that sentenced him, in
the Northern District of Mississippi. Doc. 4 at 1, 4-7. This
court is authorized, upon finding that it lacks jurisdiction
over a civil action, to transfer the action to another
federal district court “in which the action . . . could
have been brought at the time it was filed, ” if to do
so “is in the interest of justice.” 28 U.S.C.
§ 1631. However, to the extent that Barr's
pleading is construed as a habeas corpus petition filed
pursuant to § 2241, as he has labeled it, such an action
may be filed, if at all, only in the district of confinement.
See Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004);
Garcia v. Warden, 470 F. App'x 735, 736 (11th
Cir. 2012); 28 U.S.C. § 2241(a), 2243. And because Barr
is incarcerated in the Northern District of Alabama, the
federal district court for the Northern District of
Mississippi would lack jurisdiction to entertain this action
as one seeking a writ of habeas corpus. See Lee v.
Wetzel, 244 F.3d 370, 373-74 (5th Cir. 2001) (“As
[the petitioner] is incarcerated in [the federal prison in]
Talladega, Alabama, only the district court the Northern
District of Alabama would have jurisdiction to entertain his
§ 2241 petition.”). Indeed, both the sentencing
court and the United States Court of Appeals for the Fifth
Circuit have previously told Barr as much. See Barr v.
United States, 61 F. App'x 920, 920 (5th Cir. Feb.
19, 2003). As a result, this action arising under the habeas
statutes is not properly subject to transfer to the Northern
District of Mississippi under 28 U.S.C. § 1631.
court recognizes that if Barr's habeas application were
re-characterized as a motion to vacate his federal sentence
filed pursuant to 28 U.S.C. § 2255, the sentencing court
in the Northern District of Mississippi would at least
generally have subject-matter jurisdiction over that type of
motion. Barr alleges in his pleading, however, that he
previously filed a § 2255 motion in that court and had
it denied as untimely in December 2000. Doc. 1 at 3. As a
result, that court would lack jurisdiction to entertain
another § 2255 motion from Barr unless he first were to
obtain an authorizing order from the Fifth Circuit Court of
Appeals, something he does not allege. See 28 U.S.C.
§ 2255(h); Farris v. United States, 333 F.3d
1211, 1216 (11th Cir. 2003); Hooker v. Sivley, 187
F.3d 680, 681-82 (5th Cir. 1999). In fact, the sentencing
court and the Fifth Circuit have also ruled in Barr's own
case that the former would not have jurisdiction to consider
a habeas filing even if it were deemed a § 2255 motion
because it would have been successive. See Barr, 61
F. App'x at 920. Accordingly, there is no basis for
transferring this action to the sentencing pursuant to 28
U.S.C. § 1631 based on a recharacterization of
Barr's habeas petition as a § 2255 motion.
Barr contends that a transfer of his habeas action to the
sentencing court is authorized under 28 U.S.C. §
2241(d). Doc. 4 at 5. That statute authorizes transfers in
habeas corpus actions filed by “a person in custody
under the judgment and sentence of a State court, ”
i.e., State prisoners, and only then between
district courts within the same State in which the petitioner
was convicted. Thus, § 2241(d) has no application to
Barr's habeas petition challenging his present physical
custody, insofar as he is a federal prisoner seeking
a transfer to a district court in a different State.
See Dunne v. Henman, 875 F.2d 244, 249 (9th Cir.
1989) (“Section 2241(d) applies when [a state] prisoner
is confined in that state in which he was convicted and
sentenced.”); Story v. Collins, 920 F.2d 1247,
1251 (5th Cir. 1991) (recognizing that, § 2241(d)