United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
his guilty plea for possession of ammunition as a felon, doc.
31 (plea agreement), the Court sentenced Christopher Schoener
to 33 months' imprisonment, at the low end of the
applicable advisory imprisonment range of 33-41 months under
the Sentencing Guidelines. See doc. 34 (sentencing
memorandum); doc. 35 (sentencing hearing minutes); doc. 37
(judgment). He took no appeal but now seeks to
"correct" his Presentence Investigative Report
(PSR) labeling him a "sex offender, even though I am not
one, nor have never been convicted as one." Doc. 38 at
providing Schoener with the warnings required by Castro
v. United States, 540 U.S. 375, 383 (2003), the Court
recharacterized his motion as a 28 U.S.C. § 2255 motion
to correct his sentence. Doc. 39; see also doc. 40
(Schoener's amended § 2255 motion). Movant elected
to proceed with his § 2255 motion, arguing that the PSR
was incorrect and that his sentencing level and "threat
assessment" have been improperly increased as a result
of that error. Doc. 40 at 4-5; see also doc. 38 at
1-2 (complaining that he is being labeled a "sex
offender, " and the categorization "will make it
difficult for me to go home to [a] halfway house.").
Preliminary § 2255 Rule 4 review shows that his motion
must be DENIED.
cites a "crime" he was "never convicted of
that occurred on 12/112/1994, in Cobb County, Marieta Ga.
Case # 95-9-00628-22" as erroneously appearing on his
PSR. Doc. 40 at 5. But the oldest listed "adult criminal
conviction" on movant's PSR is a 1997 conviction for
theft, for which he was assigned no criminal history points.
PSR at ¶ 26. There are no earlier, juvenile convictions
on his PSR. See PSR at ¶ 25. It is unclear
where Schoener turned up the 1994 conviction as affecting his
sentence, as it is nowhere mentioned in the PSR.
the 2005 New York child endangerment conviction, counsel
argued in his sentencing memorandum that the facts of the
plea and conviction should be considered in reducing his
overall criminal history points. Doc. 34 at 1-2. With the
charge counted, Schoener would have been placed in criminal
history category IV. Id. With the charge discounted,
he would be placed in criminal history category III.
Id. The PSR itself counts no points for the
child endangerment conviction, see PSR at ¶ 33,
and at sentencing the Court assessed Schoener as falling in
criminal history category III. Doc. 35 (sentencing hearing
minutes). The sentencing guidelines recommended a sentence of
33-41 months, and the Court sentenced Schoener to 33
months' imprisonment, at the lowest end of that range.
Id. & doc. 37 (judgment).
extent Schoener wants the Court to reconsider the PSR's
inclusion of his child endangerment conviction, the argument
is either moot (because it did not count for a single
criminal history point) or not cognizable in a § 2255
motion. United States v. McCray, 567 Fed.Appx. 859,
860 (11th Cir. 2014) (a defendant cannot challenge the
accuracy of his presentencing investigation report for the
first time in a collateral attack); Simmons v. United
States, 777 F.2d 660 (11th Cir.1985) (failure to raise
objections as to PSR's inaccuracy at sentencing hearing
bars raising such objections in a § 2255
motion). He has no claim here.
Christopher Schoener's § 2255 motion should be
DENIED. Applying the Certificate of
Appealability (COA) standards set forth in Brown v.
United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009), the Court discerns no COA-worthy issues at this stage
of the litigation, so no COA should issue either. 28 U.S.C.
§ 2253(c)(1); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2254 ("The district
court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant") (emphasis added).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 Whenever a prisoner's filing is
deemed to be a § 2255 motion in disguise, "the
district court must notify the pro se litigant that it
intends to recharacterize the pleading [as a § 2255
motion], warn the litigant that this recharacterization means
that any subsequent § 2255 motion will be subject to the
restrictions on 'second or successive' motions, and
provide the litigant an opportunity to withdraw the motion or
to amend it so that it contains all the § 2255 claims he
believes he has." See Pena v. United States,
2016 WL 6609223 at * 1 (S.D. Ga. Sept. 28, 2016).
 To the extent Schoener instead seeks
review of the Bureau of Prison's (BOP) treatment of his
child endangerment conviction (or some other crime not
reflected in the PSR), see doc. 38 at 1-2
(discussing the conviction's negative impact on his
candidacy for halfway-house placement), § 2255 offers
him no succor. That section only applies to challenge the
propriety of the federal conviction or sentence itself
(i.e., whether he was misled when he pleaded guilty
or whether the sentence violated the plea bargain). Instead,
he must proceed under 28 U.S.C. § 2241, which asks
whether his federal sentence has been properly executed. And
his failure to exhaust his administrative remedies prior to
coming to this Court strips it of jurisdiction to hear his
petition under § 2241. See, e.g., Edilberto v.
United States, 2006 WL 2474101 (S.D. Ga. Aug. 24, 2006)
(movant's arguments that his alienage prevented from
qualifying for, among other things, halfway house placement
was cognizable only as a § 2241 motion, for which he
must first exhaust his administrative remedies) (citing
Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.
2004); Gonzalez v. United States, 959 F.2d 211, 212
(11th Cir. 1992)).
Even had he exhausted, this Court lacks jurisdiction
to reach the merits of any § 2241 motion. Fernandez
v. United States,941 F.2d 1488, 1495 (11th Cir. 1991)
("Section 2241 petitions may be brought only in the
district court for the district in which the inmate is
incarcerated."); see 28 U.S.C. § 2241(a)
(district courts limited to granting habeas relief
"within their respective jurisdictions");
Rumsfeld v. Padilla,542 U.S. 426, 443, 124 S.Ct.
2711, 159 L.Ed.2d 513 (2004) ("The plain language of the
[28 U.S.C. § 2241] habeas statute . . . confirms the
general rule that for core habeas petitions challenging
present physical confinement, jurisdiction lies in only one
district: the district of confinement."). If indeed
Schoener seeks review of the BOP's execution ...