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Holley v. United States

United States District Court, N.D. Alabama, Southern Division

July 31, 2017

MARVIN HOLLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 2:96-CR-0208-SLB-SGC

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE

         This 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.)[1] Holley has previously filed a Motion to Vacate pursuant to § 2255[2] and habeas petitions pursuant to § 2241[3]. 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.

         Holley 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.[4] (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.[5] 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.

         In 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);[6] 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);

         Holley’s § 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).[7] 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.

         Holley, 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),[8] 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 to Vacate.

         Section 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.”[9] 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).

         The court finds that it is without jurisdiction to decide Holley’s Motion for Relief as a § 2255 Motion to Vacate.

         An 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.

         CERTIFICATE ...


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