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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

5:89cr5014-WS 

vs.

IVORY JOE PRUITT, 

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTIONS

This cause is before the court on Defendant's actual innocence motion to void a

complete miscarriage of justice and memorandum in support. Docs. 133 and 134. 

Defendant claims that relief is available under the All Writs Act, 28 U.S.C. § 1651, and

under 28 U.S.C. § § 2241 and 2243. Defendant also filed a motion for judicial notice of

his void for vagueness challenge to the absence of the term crack or crack cocaine in

21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Doc. 135. Finally, he filed a motion to entertain

and hear the jurisdictional void for vagueness question as to § 841. Doc. 136. 

Defendant Pruitt previously filed a 28 U.S.C. § 2255 motion which was denied

with prejudice. Docs. 75, 98, and 100. Denial of relief was affirmed. Doc. 126. He

later filed a motion for the court to take judicial notice of adjudicated facts and motion to

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1 See, e.g., Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611,

140 L.Ed.2d 828 (1998) ("[w]here a defendant has procedurally defaulted a claim by

failing to raise it on direct review, the claim may be raised in habeas only if the

defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is

'actually innocent,'" citations omitted). 

Case No. 5:89cr5014-WS

correct clerical mistakes in judgment pursuant to Fed.R.Crim.P. 36. Docs. 127 and 128. 

He asserted jurisdictional errors and actual factual innocence, as well as denial of

assistance of counsel at sentencing. Doc. 129 (report and recommendation), pp. 1-2. 

His motions were deemed attempts to file a second or successive § 2255 motion, and

summarily dismissed as authorization for filing a second or successive § 2255 motion

had not been granted by the court of appeals. Docs. 129, 131 and 132

(recommendation as adopted by the court and judgment entered on the docket on June

3, 2005). Defendant did not take an appeal.

For the reasons stated as to the prior motions, the court should treat Defendant's

current motions as attempting to obtain § 2255 relief, and this court is without

jurisdiction absent authorization of the court of appeals for filing a second or successive

§ 2255 motion. § 2255; § 2255 Rule 9; doc. 129 (incorporated by reference). 

Defendant asserts a miscarriage of justice and actual innocence, which may be

construed as attempting to either avoid a procedural bar or proceed by petition for writ

of habeas corpus. A procedural bar (requiring a showing of cause and prejudice or a

miscarriage of justice, i.e., actual innocence1

) is irrelevant if the claim cannot be

considered at all. Petitioner may not raise his claims in habeas "unless it also appears

that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his

detention." § 2255; Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999) (discussing

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2

 Only after it is determined that the claim may proceed under the savings clause

is actual innocence relevant. Wofford, 177 F.3d at 144, n. 3 ("[o]nce the savings clause

of § 2255 applies to open the portal to a § 2241 proceeding, the proper inquiry in that §

2241 proceeding will be whether the petitioner can establish actual innocence" under

Bousley, cited supra n. 1); Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir.), cert.

denied, 540 U.S. 900 (2003) (even if petitioner could invoke the savings clause, "he

would still need to demonstrate cause and prejudice or actual innocence to be entitled

to habeas relief," citing Bousley). 

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this "savings clause" language of § 2255).2 Whether or not Petitioner could proceed

under the savings clause, this court lacks jurisdiction as he is incarcerated at FCI

Edgefield, in South Carolina. See Rumsfeld v. Padilla, 542 U.S. 426, ,124 S.Ct.

2711, 2722, 159 L.Ed.2d 513 (2004) (courts are limited by § 2241(a) to granting habeas

relief "within their respective jurisdictions," the traditional rule is that the writ is "issuable

only in the district of confinement.") (citations omitted). See also Lee v. Wetzel, 244

F.3d 370, 373-374 and n. 3 (5th Cir. 2001) (sentencing court does not have jurisdiction

to consider the merits of a § 2241 petition brought under the savings clause, unless the

petitioner or his custodian is also located in the district of sentencing).

Defendant's reference to the All Writs Act is similarly unavailing. See Carlisle v.

United States, 517 U.S. 416, 428, 116 S.Ct. 1460, 1467-68, 134 L.Ed.2d 613 (1996)

(noting that the Act "is a residual source of authority to issue writs that are not otherwise

covered by statute;" in light of the Federal Criminal Rules, "it is difficult to conceive of a

situation in a federal criminal case today where [a writ of coram nobis ] would be

necessary or appropriate.") (citations omitted). See also Alikhani v. United States, 200

F.3d 732, 734 (11th Cir.), cert. denied, 531 U.S. 929 (2000) (coram nobis "is appropriate

only when there is and was no other available avenue of relief.") (emphasis added);

United States v. Holt, 417 F.3d 1172, 1174-75 (11th Cir. 2005) (discussing the All Writs

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Case No. 5:89cr5014-WS

Act, holding "that a writ of audita querela may not be granted when relief is cognizable

under § 2255;" because the prisoner there was attacking his sentence § 2255 was

proper avenue of relief, and the district court had no jurisdiction to consider a second or

successive motion absent authorization for filing). 

It is therefore respectfully RECOMMENDED that Defendant's actual innocence

motion to void a complete miscarriage of justice (doc. 133), motion for judicial notice of

void for vagueness challenge (doc. 135), and motion to entertain and hear the

jurisdictional void for vagueness question (doc. 136) be SUMMARILY DISMISSED, as

leave for filing a second or successive § 2255 motion has not been granted by the court

of appeals. 

IN CHAMBERS at Tallahassee, Florida, on September 7, 2006.

 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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