Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vivero-Renteria v. Johns

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

October 26, 2017

VICTOR LUCILO VIVERO-RENTERIA, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Victor Lucilo Vivero-Renteria (“Vivero-Renteria”), who is currently incarcerated at D. Ray James Correctional Institution in Folkston, 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 Vivero-Renteria filed a Response, (doc. 11). For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Vivero-Renteria's Section 2241 Petition, and DIRECT the Clerk of Court to CLOSE this case. For the same reasons, I also RECOMMEND the Court DENY Vivero-Renteria's Motion for Certificate of Appealability and his “Motion to Re-open Petitioner's 28 U.S.C. § 2255 Application Pursuant to Fed.R.Civ.P. 60(b).” (Docs. 2, 3.) Further, the Court should DENY Vivero-Renteria in forma pauperis status on appeal.

         BACKGROUND

         On April 12, 2011, a jury in the Middle District of Florida found Vivero-Renteria guilty of a conspiracy charge and a substantive charge for distributing and possessing with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 1903(a). (Docs. 9-3, 9-4.) The Middle District of Florida sentenced Vivero-Renteria to a total term of 293 months' imprisonment. (Doc. 9-5.) The Eleventh Circuit affirmed Vivero-Renteria's conviction and sentence after he filed a direct appeal. (Doc. 9-6.)

         On September 19, 2004, Vivero-Renteria executed a 28 U.S.C. § 2255 Motion in the Middle District of Florida to attack his sentence. (Docs. 9-7, 9-8.) The district court denied Vivero-Renteria's Section 2255 Motion. (Docs. 9-9, 9-10.) On March 3, 2017, Vivero-Renteria filed a “Motion to Re-open 28 U.S.C. § 2255 Proceedings Under Fed.R.Civ.P. 60(b), ” (doc. 9-11), which the Middle District of Florida denied, (doc. 9-12).

         Having been rejected by the Middle District of Florida, Vivero-Renteria now turns to this Court to attack his sentence. In the instant Section 2241 Petition, Vivero-Renteria fails to set forth any actual ground for this Court to grant him habeas relief. (Doc. 1, pp. 6-9.) However, in his accompanying “Motion for Certificate of Appealability and to Re-open Petitioner's 28 U.S.C. § 2255 Application Pursuant to Fed.R.Civ.P. 60(b), ” Vivero-Renteria asks this Court to reduce his sentence because it is “disproportionately severe.” (Doc. 2, p. 2.) In support, he cites United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014). (Id. at pp. 1-2.)

         Respondent moved to dismiss Vivero-Renteria'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. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017). (Doc. 9.) Vivero-Renteria filed a Response opposing the Motion to Dismiss. (Doc. 11.)

         DISCUSSION

         I. Whether Vivero-Renteria 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) (citation omitted). 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 v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017).

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.