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Casado v. Flournoy

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

October 18, 2017

EFRAIN CASADO, Petitioner,
v.
WARDEN FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Efrain Casado (“Casado”), 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. 11), and Casado filed a Response, (doc. 13). For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Casado's Section 2241 Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Casado in forma pauperis status on appeal.

         BACKGROUND

         A jury in the United States District Court for the Southern District of Florida convicted Casado of engaging in a continuing criminal enterprise, distributing cocaine, and conspiring to use and carry a firearm during and in relation to a drug trafficking crime. (Doc. 11-4.) On June 6, 2000, the Southern District of Florida sentenced Casado to life imprisonment for his convictions of engaging in a criminal enterprise and distribution of cocaine and to 240 months' imprisonment for the conviction of conspiring to use and carry a firearm during and in relation to a drug trafficking crime. (Id. at p. 2.) Casado appealed, and the Eleventh Circuit Court of Appeals affirmed his convictions and sentences. (Doc. 11-5, p. 13.)

         Since his convictions, Casado has brought numerous post-conviction motions and petitions attacking his conviction and sentence in the Southern District of Florida, both in the various districts where he has been confined and in the Eleventh Circuit. See, e.g., Pet., Casado v. Warden, FCC Coleman, 5:10-cv-514 (M.D. Fla. Sep. 3, 2010), ECF No. 1; Mot., Casado v. United States, 1:11-cv-20345 (S.D. Fla. Feb. 1, 2011), ECF No. 1; Mot., Casado v. United States, 1:13-cv-24517 (S.D. Fla. Dec. 16, 2013), ECF No. 1; Pet., Casado v. Warden, 2:15-cv-16 (S.D. Ga. Jan. 29, 2015), ECF No. 1; In re: Casado, No. 16-16869 (11th Cir. Oct. 31, 2016); In re: Casado, No. 17-10631 (11th Cir. Feb. 9, 2017); In re: Casado, No. 17-11359 (11th Cir. Mar. 27, 2017).

         Casado has now filed yet another Section 2241 Petition in this Court attacking his sentence on numerous grounds. (Doc. 1.) His contentions include: the trial court failed to charge his offenses correctly, in violation of his rights under the Fifth and Sixth Amendments; that testimony was introduced at trial “to establish [a] non existing substantive offense”; that the sentencing court improperly enhanced his sentence under Section 851 based on non-qualifying predicate offenses; and that he was improperly labeled a career offender under the United States Sentencing Guidelines. (Id. at pp. 6-8.) As relief, Casado requests that he be “resentence[d] ¶ 30 years or/and [sic] release[d].” (Id. at p. 8.)

         Respondent moves to dismiss Casado's Petition, contending that he does not satisfy the requirements of 28 U.S.C. § 2255(e)'s “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. 11.) Casado filed a Response to the Motion to Dismiss. (Doc. 13.)

         DISCUSSION

         I. Whether Casado 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 can satisfy” the saving clause. McCarthan, 851 F.3d at 1081.

         After McCarthan, to determine whether a prisoner satisfies the saving clause, a court need only analyze “whether the motion to vacate is an adequate procedure to test the prisoner's claim.” Id. at 1086. To answer this question, a court should “ask whether the prisoner would have been permitted to bring that claim in a motion to vacate. In other words, a prisoner has a meaningful opportunity to test his claim whenever section 2255 can provide him a remedy.” Id. at 1086-87. In short, when reviewing a Section 2241 petition, courts should look to whether the petitioner's claim is of a kind that is “cognizable” under Section 2255. If so, the petitioner cannot meet the “saving clause” and cannot proceed under Section 2241. To be sure, “[t]he remedy [afforded] by [a Section 2255] motion is not ineffective unless the procedure it provides is incapable of adjudicating the claim.” Id. at 1088. Whether the petitioner could ...


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