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Rice v. Flournoy

United States District Court, S.D. Georgia, Brunswick Division

October 18, 2017

ADRIAN RENARD RICE, Petitioner,
v.
JOHN V. FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Adrian Rice (“Rice”), 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. (Doc. 1.) Respondent filed a Motion to Dismiss, (doc. 8), to which Rice filed a Response, (doc. 10). For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Rice's Section 2241 Petition, and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I also RECOMMEND the Court DENY Rice in forma pauperis status on appeal.

         BACKGROUND

         Following a jury trial in the United States District Court for the Southern District of Alabama, Rice was convicted of two counts of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841, and conspiracy to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846. (Doc. 8-1.) The Southern District of Alabama originally sentenced Rice to 492 months' incarceration. (Id. at p. 13.) That court subsequently reduced Rice's sentence to 364 months' incarceration due to retroactive changes to the United States Sentencing Guidelines. (Id. at p. 23.)

         Rice has filed numerous post-conviction motions in the Southern District of Alabama. (Id. at pp. 16-24.) On March 27, 1998, Rice filed a motion pursuant to 28 U.S.C. § 2255 attacking his conviction and sentence. (Id. at p. 16.) After Rice supplemented his Section 2255 pleading, the district court denied his motion. (Id. at pp. 17-18.)

         Recently, Rice twice sought permission, under 28 U.S.C. § 2255(h)(2), from the Eleventh Circuit Court of Appeals to file a second or successive Section 2255 motion. In the first of these applications, Rice attacked the sentencing court's application of United States Sentencing Guidelines' § 4B1.2's career offender enhancement to his sentence. Appl., In re: Rice, Case No. 16-12267 (11th Cir. May 9, 2016). Rice cited the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015), in which the Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. Id. Rice argued that Johnson's invalidation of the ACCA's residual clause should be applied to invalidate similar language in Section 4B1.2 of the Sentencing Guidelines. Id. Thus, Rice maintained, under Johnson, his prior convictions could not be considered crimes of violence under the Sentencing Guidelines' career offender provision. The Eleventh Circuit denied Rice's application. Order, In re: Rice, Case No. 16-12267 (11th Cir. June 8, 2016). The court held that, even assuming Johnson applies to a career offender designation made under a mandatory Sentencing Guidelines scheme, Rice would remain a career offender without application of the residual clause of Section 4B1.2. Id. at pp. 4-5. Specifically, Rice has two previous New York felony convictions, one for robbery in the first degree and one for attempted robbery in the first degree, which both qualify as a violent felony under the elements clause of the career offender provision. Id.

         In his second application to file a second or successive Section 2255 motion, Rice claimed that his sentence violated due process because, in light of Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (June 23, 2016), he does not qualify for an enhancement as a career offender under United States Sentencing Guidelines §§ 4B1.1 and 4B1.2. Appl., In re: Rice, Case No. 16-16668 (11th Cir. Oct. 24, 2016). In Mathis, the Supreme Court resolved a dispute of statutory construction of the ACCA. The Court held that the fact that a statute contains multiple alternative means of committing the crime does not make the statute divisible if these means are not alternative elements but rather only factual determinations about an element, and thus, unnecessary to the jury's determination of guilt for the crime. Mathis, ___ U.S. ___ at, 136 S.Ct. at 2251-54. The Eleventh Circuit rejected Rice's reliance on Mathis, because the decision did not announce a new rule of constitutional law made retroactively applicable to cases on collateral review by the Supreme Court, as required by 28 U.S.C. § 2255(h)(2). Order, In re: Rice, 16-16668, pp. 2-3 (11th Cir. Nov. 16, 2016). The Eleventh Circuit also rejected Rice's reliance on United States v. Jones, 830 F.3d 142 (2d Cir. 2016), because the Second Circuit Court of Appeals had vacated its decision in Jones, and the decision was not rendered by the Supreme Court, as required for an announcement of a new rule of constitutional law. Id. at p. 3.

         Having been repeatedly rejected by the Southern District of Alabama and the Eleventh Circuit, Rice has now turned to this Court. In the instant Section 2241 Petition, he once again attacks the Southern District of Alabama's sentence. He contends that the sentencing court improperly utilized his prior convictions for first degree robbery and attempted robbery to classify him as a career offender. (Doc. 1.) Rice again relies upon the Supreme Court's decision in Johnson and the Second Circuit's now vacated decision in Jones. (Id. at p. 2.) Respondent moves to dismiss Rice's Petition, contending that he does not satisfy the requirements of the 28 U.S.C. § 2255(e) “saving clause” in light of the Eleventh Circuit's decision in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017). (Doc. 8.) Rice filed a Response to the Motion to Dismiss. (Doc. 10.)

         DISCUSSION

         I. Whether Rice can Proceed Pursuant to Section 2241

         Section 2241 habeas corpus petitions “are generally reserved for challenges to the execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement.” Vieux v. Warden, 616 Fed.Appx. 891, 896 (11th Cir. 2015) (internal punctuation and citation omitted). 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 Section 2241 to attack the validity of a federal sentence or conviction, a petitioner must show that the remedy afforded under Section 2255 is “inadequate or ineffective”. Taylor v. Warden, FCI Marianna, 557 Fed.Appx. 911, 913 (11th Cir. 2014); Turner, 709 F.3d at 1333 (noting the petitioner bears the burden of establishing that the remedy under Section 2255 was inadequate or ineffective to test the legality of his detention). A motion to vacate covers only challenges to the validity of a sentence, but the saving clause and a petition for a writ of habeas corpus cover challenges to the execution of a sentence. Cf. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (“It is well-settled that a § 2255 motion to vacate is a separate and distinct remedy from habeas corpus proper. . . . A prisoner in custody pursuant to a federal court judgment may proceed under § 2241 only when he raises claims outside the scope of § 2255(a), that is, claims concerning execution of his sentence.”) (internal citations omitted)); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) (“[The prisoner's] appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing.”).

         Section 2255(e) provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The above-emphasized portion of Section 2255(e) is referred to as the “saving clause.” “Section 2255(e) makes clear that a motion to vacate is the exclusive mechanism for a federal prisoner to seek collateral relief unless he ...


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