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Florence v. Edge

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

February 28, 2019

GEORGE EDWIN FLORENCE, Petitioner,
v.
WARDEN D. EDGE, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner George Florence (“Florence”), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, filed a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus. Doc. 1. Respondent filed a Motion to Dismiss. Doc. 7. Florence filed a Response. Doc. 9. For the reasons which follow, I RECOMMEND the Court GRANT Respondent's Motion, DISMISS Florence's § 2241 Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Florence in forma pauperis status on appeal.

         BACKGROUND

         After a jury trial in the District Court for the Middle District of Florida, Florence was convicted of two counts of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and two counts of possession of a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c). Doc. 1 at 2. The Middle District of Florida sentenced Florence to 357 months' imprisonment and ordered him to pay $3, 229.00 in restitution. Id. at 5, 25. In addition, the Middle District imposed the sentencing condition that Florence “shall participate as directed in a program of mental health treatment approved by the Probation Officer.” Id. at 45.

         During Florence's direct appeal from that case, his trial counsel moved to withdraw and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Doc. 7 at 2. Florence argued the district court erred in imposing restitution, inter alia, but the Eleventh Circuit Court of Appeals affirmed Florence's conviction and sentence. United States v. Florence, 176 F.3d 491 (11th Cir. 1999).

         Florence filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. 7 at 3. The District Court for the Middle District of Florida denied Florence's motion, and the Eleventh Circuit denied him a certificate of appealability. Since that time, Florence has filed several post-conviction motions in the Middle District of Florida, in the districts in which he has been confined, and with the Eleventh Circuit. Id. (listing cases). Respondent now moves to dismiss Florence's § 2241 Petition. Doc. 7.

         DISCUSSION

         In his Petition, Florence contends the Florida district court “impermissibly delegated its judicial duty to establish a payment schedule by adopting the payment schedule” the Bureau of Prisons (“BOP”) devised. Doc. 1 at 5. Florence also asserts the Florida district “impermissibly delegated its judicial authority when it gave his Probation Officer ‘authority to decide whether Petitioner will participate in a treatment program.'” Id. at 16-17. Respondent asserts Florence's Petition should be dismissed, as he fails to satisfy 28 U.S.C. § 2255(e)'s saving clause. Doc. 7.

         I. Whether Florence can Proceed Under § 2241

          As the first ground in his Petition, Florence avers the district court violated the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A (“MVRA”), by not specifying the manner in which and the schedule by which the ordered restitution is to be paid. Doc. 1 at 11. Thus, Florence claims he is not disputing the portion of his sentence relating to restitution, but rather the manner of its execution by the BOP. Id. According to Florence, the BOP has exceeded its authority and usurped a core judicial function by setting the terms of the restitution order. Florence asserts he could not object to this delegation of judicial authority because he was not aware of it until after he received a copy of the written judgment after sentencing. Id.[1]

         As to his second ground, Florence contends the district court “delegat[ed] the mental health treatment program to the approval of the Probation Officer, ” which was ambiguous as to whether such delegation was an impermissible delegation of judicial authority. Id. at 16. Florence maintains he did not have the opportunity to object to or contest this provision during the sentencing hearing because the trial court failed to announce this special condition. Id. Florence asserts a probation officer may not “decide the nature or extent of the punishment upon a probationer.” Id. at 17.

         Respondent avers that, even though Florence claims to be challenging the execution of his sentence-which is permissible under § 2241, Florence is clearly challenging the validity of his sentence-which he cannot do under § 2241. Doc. 7 at 7. Specifically, Respondent asserts Florence challenges whether the district court erred at sentencing “by impermissibly delegating its core judicial duties to the BOP and the Probation Office.” Id. Respondent alleges Florence could have raised his claims on direct appeal or in his § 2255 proceedings, and he admits he filed similar claims on direct appeal. Doc. 1 at 11, 17; Doc. 7 at 7. Respondent contends Florence fails to show the remedy under § 2255 is inadequate or ineffective to test the legality of his sentence and cannot proceed under § 2241. Doc. 7 at 7-8.

         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 § 2241 to attack the validity of a federal sentence or conviction, a petitioner must show that the remedy afforded under § 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 § 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 ...


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