United States District Court, S.D. Georgia, Brunswick Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
MES E. GRAHAM, Magistrate Judge.
Petitioner Derrick Smith ("Smith"), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a Motion to Dismiss, and Smith filed a Response. For the reasons which follow, Respondent's Motion should be GRANTED.
STATEMENT OF THE CASE
Smith was convicted in the Middle District of Florida, after pleading guilty, of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. Smith was sentenced to 360 months' imprisonment. The Eleventh Circuit Court of Appeals affirmed his conviction and sentence. United States v. Smith , 263 F.3d 170 (11th Cir. 2001) (Table).
Smith filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which was dismissed as untimely. The Eleventh Circuit denied him a certificate of appealability. Smith filed an application for leave to file a successive § 2255 motion with the Eleventh Circuit, and that court denied his application. Nevertheless, Smith filed another section 2255 motion, which was dismissed as successive. Smith filed another motion, which was construed as a successive § 2255 motion and was dismissed.
The trial court sua sponte reduced Smith's sentence to 292 months' imprisonment based on the crack cocaine amendments to the United States Sentencing Guidelines. Smith filed a motion for retroactive application of an amendment to the Sentencing Guidelines, which was granted. Smith's sentence was reduced to 262 months' imprisonment. Smith filed an appeal, and the Eleventh Circuit affirmed. Smith v. United States, 554 F.App'x 869 (11th Cir. 2014).
Smith filed a § 2241 petition in this Court and asserted that he was innocent of the distribution of the quantity of drugs necessary to receive his sentence and of a two-point firearm enhancement. The undersigned recommended that Smith's petition be dismissed because he failed to satisfy the savings clause of 28 U.S.C. § 2255. The Honorable Anthony A. Alaimo adopted this recommendation as the opinion of the Court. (CV204-60, Doc. Nos. 21, 25).
Smith filed a second section 2241 in this Court. Smith asserted that the district court misapplied Apprendi v. New Jersey , 530 U.S. 466 (2000), his Fifth and Sixth Amendment rights were violated, his counsel was ineffective, and his guilty plea was not voluntary. The undersigned once again determined that Smith failed to satisfy the savings clause and recommended that Smith's petition be dismissed. Judge Alaimo adopted this recommendation as the opinion of the Court. (CV205-51, Doc. Nos. 9, 12).
Smith filed yet another § 2241 petition in this Court and asserted that he is actually innocent of the career offender provision of the Sentencing Guidelines. According to Smith, one of his predicate offenses was a simple possession conviction, which could not be used to enhance his sentence. Smith asserted that there were changes in the law which applied retroactively in his favor. The undersigned disagreed and recommended that Smith's petition be dismissed for failing to satisfy the savings clause. The Honorable Lisa Godbey Wood adopted this recommendation as the opinion of the Court. (CV212-67, Doc. Nos. 8, 10).
In this petition, Smith's fourth in this Court, he asserts that he was wrongly sentenced as a career offender under the Sentencing Guidelines. Smith requests that this Court order that he be resentenced without the career offender enhancement and that the prior offense which is not a qualifying felony under the career offender provision be corrected in his Pre-Sentence Investigation Report ("PSI").
Respondent contends that Smith's career offender enhancement claim is not cognizable under section 2241. Respondent also contends that Smith's request to have his PSI corrected is an attempt to circumvent the savings clause. In the alternative, Respondent alleges that Smith admits that the Bureau of Prisons has already corrected this information in its central file, making his claim moot.
DISCUSSION AND CITATION OF AUTHORITY
Ordinarily, an action in which an individual seeks to collaterally attack "the validity of a federal sentence must be brought under § 2255, " in the district of conviction. 28 U.S.C. § 2255(a); Turner v. Warden Coleman FCI (Medium) , 709 F.3d 1328, 1333 (11th Cir. 2013). To utilize § 2241 to attack the validity of a federal sentence or conviction, a petition must show that the remedy afforded under section 2255 is "inadequate or ineffective" to challenge the validity of a conviction and/or sentence. Taylor v. Warden, FCI Marianna , 557 F.App'x 911, 913 (11th Cir. 2014).
The United States Court of Appeals for the Eleventh Circuit provided two "challenges to which the savings clause" is applicable. Williams v. Warden, Fed. Bureau of Prisons ...