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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case No. 4:89cr4006-WS

Case No. 4:05cv186-WS/WCS

TYRONE SMITH, 

Defendant.

_____________________________/

REPORT AND RECOMMENDATION ON MOTION TO VOID SENTENCE

Defendant filed a motion titled "Motion to Void Illegal Part of Sentence for Lack of

Jurisdiction and Terminate Detention of A Person in Federal Custody Pursuant to Writ

of [Habeas] Corpus 28 U.S.C. § 2241," and a motion to supplement the petition. Docs.

754-755. 

Defendant's argument is that his sentence was based on findings by the court at

sentencing as to drug weight, role enhancement, and obstruction of justice, in violation

of United States v. Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), 

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and 

Apprendi v. New Jersey, 530 U.S. 466, 476, 490, 120 S.Ct. 2348, 2355, 2362-63, 147

L.Ed.2d 435 (2000). Doc. 754, pp. 2-30 (other citations omitted). See also, Ring v.

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Case Nos. 4:89cr4006-WS and 4:05cv186-WS/WCS

Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Jones v. United States,

526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). 

Defendant was previously denied 28 U.S.C. § 2255 relief, reconsideration was

denied, and the denial of relief was affirmed on appeal. Docs. 593, 603, and 661. 

Defendant then filed a motion for relief from judgment and for leave to amend

pleadings, seeking relief under Apprendi. Doc. 717. The court summarily denied the

motion, finding that Defendant's only potential avenue for relief was pursuant to § 2255,

and authorization for filing a second or successive § 2255 motion had not been granted

by the court of appeals. Docs. 718 and 721. Leave to appeal in forma pauperis was

denied and a certificate of appealability denied. Doc. 727. 

In an apparent attempt to avoid another dismissal under the successive motion

provisions of § 2255, Defendant now seeks relief under § 2241, asserting that a

jurisdictional defect cannot be defaulted, and the court has inherent power to void an

illegal sentence. He asserts that the petition should not be construed as a 28 U.S.C. §

2255 motion. 

Defendant is "in custody" under a federal sentence, "claiming the right to be

released upon the ground that the sentence was imposed in violation of the Constitution

or laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack," and therefore "may move the court which

imposed the sentence to vacate, set aside or correct the sentence." § 2255. His claim

for relief under Booker and other cases falls under the plain language of § 2255. 

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Case Nos. 4:89cr4006-WS and 4:05cv186-WS/WCS

Under the "savings clause" of § 2255, a prisoner otherwise entitled to proceed

under § 2255 may seek relief by habeas corpus only if the § 2255 remedy "is

inadequate or ineffective to test the legality of his detention." § 2255. In his motion to

supplement, Defendant argues that the § 2255 remedy is inadequate or ineffective

"when it is so configured so as to deny a defendant any opportunity for judicial

rectification of a fundamental defect in his conviction." Doc. 755, p. 2. He asserts that

sentencing above the maximum authorized by the guidelines, based on matters not

charged or found by the jury beyond a reasonable doubt, constitutes a fundamental

defect. Id. He asserts that a jurisdictional error cannot be defaulted, and he could not

have raised Blakely or Booker arguments in his first § 2255 motion, as such arguments

were contrary to circuit precedent. Id., pp. 3-4. Defendant contends that to deny review

of his claim would unconstitutionally suspend the writ of habeas corpus. Id., p. 4. 

Defendant has not shown entitlement to proceed under the savings clause. 

The savings clause of § 2255 applies to a claim when: 1) that claim is

based upon a retroactively applicable Supreme Court decision; 2) the

holding of that Supreme Court decision establishes the petitioner was

convicted for a nonexistent defense; and, 3) circuit law squarely

foreclosed such a claim at the time it otherwise should have been raised in

the petitioner's trial, appeal, or first § 2255 motion.

Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999) (footnote omitted). 

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 1 This district has found that Wofford did not necessarily resolve whether an

Apprendi claim could proceed under the savings clause. Bridges v. Vasquez, 151

F.Supp.2d 1353, 1360-62 (N.D. Fla. 2001) (noting that Wofford involved sentencing

claims, and was decided at a time when there were "literally hundreds of claims"

pending under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472

(1995), a case of statutory interpretation). Section 2255 allows for the filing of a

successive motion where the Supreme Court announces a new rule of constitutional –

but not statutory – law. Id., at 1362. The court therefore found that the specific

language of § 2255, "address[ing] the precise issue of the circumstances under which

collateral relief is available to a federal defendant based on a new rule of constitutional

law," should "trump" the general savings clause language. Id. (citation and footnote

omitted). 

 2 See also Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005) (agreeing with

the Sixth, Seventh, Tenth, and Eleventh Circuits that Booker is not retroactive) (citing

Varela, other citations omitted); Lloyd v. United States, 407 F.3d 608, 615-616 (3d Cir.

2005) (joining the other circuits, collecting cases). 

Case Nos. 4:89cr4006-WS and 4:05cv186-WS/WCS

Assuming that a Booker claim could proceed under the savings clause,1

Defendant has not satisfied the first two elements of Wofford. He has not shown that

Booker, Blakely, or Apprendi apply retroactively. Varela v. United States, 400 F.3d 864,

867 (11th Cir. 2005) (Blakely and Booker do not apply retroactively on collateral review

even when raised in initial § 2255 motion); McCoy v. United States, 266 F.3d 1245,

1256-58 (11th Cir. 2001), cert. denied, 536 U.S. 906 (2002) (Apprendi does not apply

retroactively).2 See also Wesson v. United States Penitentiary, 305 F.3d 343, 347 (5th

Cir. 2002), cert. denied, 537 U.S. 1241 (2003) (petitioner could not raise Apprendi claim

under the savings clause; all the circuits had found it did not apply retroactively on

collateral review, and that analysis "applies even more strongly" under § 2241)

(collecting cases). 

Further, Defendant has not shown that he was convicted of a nonexistent

offense. "To prove an offense is non-existent, a petitioner must show he was

imprisoned for conduct that was not prohibited." Darby v. Hawk-Sawyer, 405 F.3d 942,

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 3 In Sawyer, a subsequent Supreme Court case had clarified the standard by which a

jury must find a defendant guilty of engaging in a continuing criminal enterprise (CCE),

but did not invalidate CCE offenses or change the conduct necessary for a CCE

offense. 326 F.3d at 1366. "As such, Sawyer was not convicted of a nonexistent

offense." Id. In Darby, the claim of a Jamaican citizen, that he was not given the

opportunity to contact the Jamaican consulate after his arrest, in violation of the Vienna

Convention on Consular Relations, did not show that he was imprisoned for conduct not

prohibited. 405 F.3d at 945. 

Case Nos. 4:89cr4006-WS and 4:05cv186-WS/WCS

945 (11th Cir. 2005), citing Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003)

(both applying Wofford).3 Conspiracy to possess with intent to distribute cocaine base

is a federal offense, whether or not drug weight or other sentencing factors are charged

or proven. McCoy, 266 F.3d at 1253 (a § § 841 or 846 indictment charging conspiracy

or possession with intent to distribute cocaine base charged complete federal offense

even absent specification of drug amount). See also, Wesson, 305 F.3d at 348

(Apprendi claim could not proceed under the savings clause as petitioner "fails to show

that he was convicted of a nonexistent offense as Apprendi has no effect on whether

the facts of his case would support his conviction for the substantive offense. Apprendi

implicates only the validity of the sentence.") (citation omitted). 

As this claim cannot proceed under the savings clause, Defendant must obtain

authorization from the Eleventh Circuit before filing a second or successive § 2255

motion raising a Booker claim. § 2255 (requiring that "[a] second or successive motion

must be certified as provided in section 2244" to contain newly discovered evidence, or

"a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable."). Authorization for filing such a claim

has been denied in this circuit. In re Anderson, 396 F.3d 1336, at 1339 (11th Cir. 2005)

(denying leave to file successive motion as the Supreme Court has not made Booker or

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Case Nos. 4:89cr4006-WS and 4:05cv186-WS/WCS

Blakely retroactive on collateral review). See also Varela and McCoy (cited supra,

holding that Booker, Blakely, and Apprendi do not apply retroactively to an initial § 2255

motion). 

It is therefore respectfully RECOMMENDED that "Motion to Void Illegal Part of

Sentence," as supplemented (docs. 754 and 755), be SUMMARILY DENIED.

IN CHAMBERS at Tallahassee, Florida, on July 7, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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