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Morrow v. Flournoy

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

October 20, 2017

JUSTIN LAVAR MORROW, Petitioner,
v.
JOHN V. FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner Justin Morrow (“Morrow”), 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. 10), to which Morrow filed a Response, (doc. 12). For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Morrow'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 Morrow in forma pauperis status on appeal.

         BACKGROUND

         On December 22, 2008, Morrow pled guilty to conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846 (Count 1); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and (2) (Count 2), in the United States District Court for the Middle District of Florida. (Docs. 10-3, 10-4, 10-5, 10-6.) Prior to his entry of guilty plea, the Government filed a 21 U.S.C. § 851 notice of enhanced penalties, which informed Morrow that he faced a possible mandatory minimum term of 20 years' imprisonment as to Count One based on his two prior Florida drug trafficking convictions. (Doc. 10-7.) The Middle District of Florida sentenced Morrow to a total term of 300 months' imprisonment (240 months for the drug offense and 60 months for the gun offense, the mandatory minimum for each count, to be served consecutively). (Doc. 10-8.) Morrow's plea agreement contained an appeal waiver, (doc. 10-4, p. 13), and he did not file an appeal. The Government subsequently filed a motion for downward departure based on Morrow's substantial assistance, and the Middle District of Florida granted that motion and reduced Morrow's total sentence from 300 to 248 months' imprisonment (188 months as to Count 1 and 60 months as to Count 2, to run consecutively). (Docs. 10-9, 10-10.)

         On May 14, 2010, Morrow filed a motion in the sentencing court pursuant to 28 U.S.C. § 2255 attacking his sentence. (Doc. 10-11.) He raised numerous arguments, including claims that his attorney rendered ineffective assistance of counsel, that the Government violated his constitutional rights by sentencing him to 120 months of supervised release following his term of imprisonment, and that the enhancement of his sentence under Section 851 violated the Fifth and Sixth Amendments and the principle of separation of powers. (Id.) The district court denied Morrow's Section 2255 motion. (Docs. 10-12, 10-13.) The court found that his claims were barred by the appeal and collateral attack waivers in his plea agreement and substantively meritless. (Id.)

         Having been rejected by the Middle District of Florida, Morrow has now turned to this Court to attack his sentence. In the instant Section 2241 Petition, he once again attacks the Middle District of Florida's sentence. He contends that the sentencing court improperly classified him as a career offender by using a modified categorical approach, in violation of Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (June 23, 2016). (Doc. 1, pp. 6-7.) As relief, he requests to be resentenced without the career offender enhancement. (Id. at p. 8.)

         Respondent moves to dismiss Morrow'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 Court of Appeals' decision in McCarthan v. Direction of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017). (Doc. 10.) Morrow filed a Response opposing the Motion to Dismiss. (Doc. 12.)

         DISCUSSION

         I. Whether Morrow 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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