United States District Court, N.D. Alabama, Southern Division
LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE
case is presently pending before the court on a Motion for
Relief from Unlawful Enhancement as a Career Offender
Pursuant to § 2241 [hereinafter Motion for Relief],
filed by petitioner, Marvin Holley. (Doc. 1; crim. doc.
482.) Holley has previously filed a Motion to
Vacate pursuant to § 2255 and habeas petitions pursuant to
§ 2241. For the reasons set forth below, the
court finds that it does not have jurisdiction over
Holley’s Motion for Relief pursuant to § 2241
challenging his conviction and sentence. Holley’s
Motion for Relief, (doc. 1; crim. doc. 482), will be denied
and this case will be dismissed.
contends “that he is ‘actually
innocent’ of his designation as a career offender
and his conviction for CCE [continuing criminal
enterprise],” in light of the Supreme Court’s
decision in Mathis v. United States, 136 S. Ct.
2243. (Doc. 1 at 1.) He argues his petition
– challenging his conviction and sentence – can
be brought pursuant to § 2241, stating:
Under certain circumstances § 2255 permits a prisoner to
seek[ ] [habeas] relief pursuant to 28 U.S.C. § 2241. A
[prisoner] must show that he has exhausted his § 2255
remedy and the remedy provided through § 2255 is
“inadequate or ineffective” to test the legality
of his detention.[ ] See, 28 U.S.C. § 2255(e)(savings
clause). The Eleventh Circuit recently overruled its prior
precedents in McCarthan v. Director of Goodwill
Industries Suncoast, Inc., 851 F.3d 1076 (11th [C]ir.
2017)(en banc). The Court established a new (and far simpler)
test for when a petitioner seeking § 2255 relief can
proceed under § 2241. Looking to the text of the Savings
Clause, the Court concluded that the only relevant question
is whether the prisoner would have been permitted to bring
that type of claim in a § 2255 motion. See,
McCarthan, 851 F.3d at 1099-1100. If the answer is
no, the § 2255 remedy is inadequate and [ineffective].
Id. The Petitioner wishes to challenge the execution
of his sentence pursuant to § 2241. See, e.g.
Antonelli v. Warden, USP Atlanta, 542 F.3d 1348,
1352 (11th [C]ir.2008).
(Doc. 1 at 3-4 [footnote added].) Citing cases from the
Seventh Circuit, Holley argues that his Mathis
claims are properly brought pursuant to § 2241.
(Id. at 4-5.) The court disagrees.
McCarthan v. Director of Goodwill Indus.-Suncoast,
Inc., the Eleventh Circuit held, “A [§ 2255]
motion to vacate is inadequate or ineffective to test the
legality of a prisoner's detention only when it
cannot remedy a particular kind of claim.” 851
F.3d at 1099 (emphasis added). The McCarthan
decision has been described as “a very restrictive
approach, holding that claims that could have been tested in
an initial § 2255 motion cannot pass through the saving
clause.” Brian Means, Second or Successive Defined
– Section § 2241 Habeas Petitions and
Common Law Writs, Postconviction Remedies, § 27:15
and n.8 (June 2017 Update)(citing McCarthan, 851
F.3d 1076 and Prost v. Anderson, 636 F.3d 578 (10th
Cir. 2011). Following McCarthan, the Eleventh
Circuit has held:
Under 28 U.S.C. § 2255’s “saving
clause,” an inmate may only file a petition for a writ
of habeas corpus under § 2241 where a motion for relief
pursuant to § 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
§ 2255(e). We recently held, sitting en banc, that
“a change in caselaw does not make a motion to vacate a
prisoner’s sentence ‘inadequate or ineffective to
test the legality of his detention.’”
McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1079-80 (11th Cir. 2017)(quoting 28 U.S.C.
§ 2255(e)). “Even if a prisoner's claim fails
under circuit precedent, a motion to vacate remains an
adequate and effective remedy for a prisoner to raise the
claim and attempt to persuade the court to change its
precedent, and failing that, to seek certiorari in the
Supreme Court.” Id. at 1099-1100.
Acosta v. Warden, FCC Coleman–Medium, No.
14-15414, 2017 WL 1531976, at *1 (11th Cir. Apr. 28,
2017); see also Smith v.
FCC–Coleman-Medium Warden, No. 15-13021, 2017 WL
3142288, *2 (11th Cir. July 25, 2017); Humphreys v.
Warden, No. 15-12440, 2017 WL 2703556, *3 (11th Cir.
June 22, 2017); Morales v. Warden, No. 15 14056,
2017 WL 2399582, at *1 (11th Cir. June 2, 2017); Nipper
v. Warden, FCC Coleman Medium, No. 12-13281, 2017 WL
2378191, at *1 (11th Cir. June 1, 2017); McDowell v.
Warden, FCC Coleman-Medium, No. 16-10047, 2017
WL 2352000, *3 (11th Cir. May 31, 2017);
§ 2241 petition raises the following claims: (1)
“Alabama Statute Code l3A-12-231 is not a Controlled
Substance Offense under U.S.S.G. § 4B1.2,” (doc. 1
at 5), (2) the Eleventh Circuit’s decision in
United States v. Landaverde, 629 Fed.Appx. 854, 856
(11th Cir. 2015), which held that Alabama’s trafficking
statute infers an intent to distribute, was wrongly decided,
(id. at 8), (3) his prior convictions “do not
qualify as predicates for CCE,” (id. at 11),
and (4) he should have been allowed to present evidence at
his trial that he “may be guilty of growing/harvesting
industrial hemp without the proper license,”
(id. at 15). The court finds that Holley was
“free to bring” these claims in his initial
§ 2255 Motion to Vacate. McCarthan, 851 F.3d
1099 (quoting Prost, 636 F.3d at 580). Therefore,
the saving clause does not apply to Holley’s §
2241 petition and this court lacks jurisdiction to consider
his claims. Williams v. Warden, 713 F.3d 1332,
1339-40 (11th Cir. 2013), abrogated on other grounds by
McCarthan, 851 F.3d 1076.
a federal prisoner, is attempting to collaterally attack the
legality of his conviction and sentence; the appropriate
means to challenge errors that occurred on or before
sentencing is § 2255. See United States v.
Flores, 616 F.2d 840, 842 (5th Cir. 1980), cited in
McCarthan, 851 F.3d at 1089-90. However, because he has
previously filed a § 2255 Motion to Vacate, Holley must
receive permission from the Eleventh Circuit Court of Appeals
before he may file a second or successive § 2255 Motion
2244(a) states, “No . . . district judge shall be
required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge
or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section
2255.” 28 U.S.C. § 2244(a). “Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”
Id. (b)(3)(A). “Only prisoners who satisfy the
exceptions of section 2255(h) may collaterally attack their
sentences more than once.” McCarthan, 851 F.3d
at 1090. Whether a prisoner has satisfied § 2255(h) is a
question for the Eleventh Circuit because, “Without
authorization [from the Eleventh Circuit], the district court
lacks jurisdiction to consider a second or successive
petition.” United States v. Holt, 417 F.3d
1172, 1175 (11th Cir. 2005)(citing Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003)).
“This authorization is required even when, as here,
a defendant asserts that his motion is based on the existence
of a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.” United
States v. Mitchell, No. 3:03CR57/LAC/CJK, 2015 WL
5635001, *2 (N.D. Fla. Aug. 20, 2015)(emphasis added),
report and recommendation adopted 2015 WL 5674849
(N.D. Fla. Sept. 22, 2015); see also Acosta, 2017 WL
1531976 at *1 n.2 (noting that Acosta had received permission
to file a second or successive § 2255 Motion).
court finds that it is without jurisdiction to decide
Holley’s Motion for Relief as a § 2255 Motion to
Order denying Holley’s Motion for Relief from Unlawful
Enhancement as a Career Offender Pursuant to § 2241,
(doc. 1; crim. doc. 482), and dismissing this case will be
entered contemporaneously with this Memorandum Opinion.