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Deorio v. Flournoy

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

October 20, 2017

SAMUEL DEORIO, Petitioner,
v.
VIC FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Samuel Deorio (“Deorio”), 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. 9), to which Deorio filed a Response, (doc. 11). For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Deorio'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 Deorio in forma pauperis status on appeal.[1]

         BACKGROUND

         On April 25, 2000, a jury in the Southern District of Florida found Deorio guilty of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; use of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Docs. 9-3, 9-4, 9-5.) The Southern District of Florida sentenced Deorio to a total term of 322 months' imprisonment. (Doc. 9-5.) Deorio filed a direct appeal, and the Eleventh Circuit Court of Appeals ultimately affirmed his convictions and sentence. United States v. Deorio, 45 Fed.Appx. 876 (11th Cir. 2002); (see also doc. 9-6.)

         On August 20, 2002, (while his direct appeal was still pending), Deorio filed a motion in the Southern District of Florida, pursuant to 28 U.S.C. § 2255, attacking his conviction and sentence. (Docs. 9-7, 9-8.) Deorio argued that the district court lacked jurisdiction to prosecute him in federal court because the drug offenses took place on private property, not on a federal enclave. (Id.) After the Eleventh Circuit issued its mandate on October 16, 2002, the district court denied Deorio's Section 2255 motion, finding that his claim was meritless. (Docs. 9-9, 9-10.)

         On June 20, 2016, Deorio filed an application for leave to file a second or successive Section 2255 motion with the Eleventh Circuit based on the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015).[2] (Doc. 9-11.) Deorio also filed another Section 2255 motion in the Southern District of Florida seeking to vacate his sentence based on Johnson. (Docs. 9-13, 9-14.) The district court stayed the Section 2255 motion pending the resolution of Deorio's application with the Eleventh Circuit. (Docs. 9-15, 9-16.) On July 20, 2016, the Eleventh Circuit denied Deorio's application for leave to file a successive Section 2255 motion. (Doc. 9-17.) The court held that, though Deorio may have made a prima facie showing that he falls under the scope of the newly-announced rule in Johnson, the application of Johnson would have no effect on his actual sentence under the concurrent sentence doctrine. (Id. at pp. 7-8.) Specifically, the court found that even if, under Johnson, the ACCA enhancement were removed from Deorio's sentence for being a felon in possession of a firearm, he would still be subject to a concurrent sentence of 262 months' imprisonment on his drug-conspiracy conviction, because he qualified as a career offender based on two predicate crimes of violence or controlled-substance offenses: cocaine trafficking and aggravated battery. (Id.) Following the Eleventh Circuit's denial of Deorio's application, the district court dismissed his Section 2255 motion. (Doc. 9-18.)

         Having been rejected by the Southern District of Florida and the Eleventh Circuit, Deorio has now turned to this Court to attack his sentence. In the instant Section 2241 Petition, he once again contends that Johnson compels that he be resentenced without the armed career criminal enhancement. (Doc. 1.) As relief, he requests to be resentenced without a career offender enhancement. (Id. at p. 8.)

         Respondent moved to dismiss Deorio'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, 1081 (11th Cir. 2017). (Doc. 9.) Deorio filed a Response opposing the Motion to Dismiss. (Doc. 11.)

         DISCUSSION

         I. Whether Deorio 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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