United States District Court, N.D. Alabama, Western Division
OWEN BOWDRE CHIEF 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 Genesis Wess, pro se, a federal prisoner
at the Federal Correctional Institution in Talladega,
Alabama. (Doc. 1). In his petition, Wess challenges his
federal sentence imposed in 2000 by the United States
District Court for the Eastern District of Louisiana after
Wess pled guilty to federal drug charges. (Id. at
1-2) 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). Wess 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, Wess 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).
Gilbert, the court held that § 2255(e)'s
savings clause does not extend habeas jurisdiction to claims
by federal prisoners, like Wess, 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 applies retroactively to cases on collateral
review. Citing a host of lower federal court decisions from
outside the Eleventh Circuit, Wess also suggests existence of
“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 Wess, 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 for
short, the court must follow Gilbert and
McCarthan wholly regardless of whether other federal
courts, including 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.”); see also Barr v. Fernander, No.
1:17-cv-0843-AKK-JEO, Doc. 5 (N.D. Ala. June 20, 2017).
alternative, Wess 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 Eastern District of Louisiana. (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.
the extent that Wess'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 Wess is incarcerated
in the Northern District of Alabama, the federal district
court for the Eastern District of Louisiana 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