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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVRON D. DADAMURATOV,

Petitioner,

vs. Case No. 5:10cv18/SPM/MD

UNITED STATES OF AMERICA, 

Respondent.

______________________________________________________________________

ORDER and

AMENDED REPORT AND RECOMMENDATION

On February 4, 2010, a Report and Recommendation (“original Report and

Recommendation”) was issued by the undersigned. (Doc. 5). This Amended Report

and Recommendation is submitted to clarify one of the recommendations made in

the original Report and Recommendation. For the sake of clarity and judicial

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economy, the original Report and Recommendation shall be vacated and this

Amended Report and Recommendation shall replace the former in full. Although the

Amended Report and Recommendation does not change the substantive analysis

in any way, the parties shall be given an opportunity to file objections to this

Amended Report and Recommendation pursuant to 28 U.S.C. § 636(b). 

Petitioner initiated this action by filing an untitled pleading (doc. 1) and a

motion to proceed in forma pauperis (doc. 2). The caption of the pleading contained

On the last page of the original Report and Recommendation, it was recommended in

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paragraph 3 that “all further proceedings be filed and maintained in the criminal case file (Case

Number 5:08cr18/RS); however, all pleadings contain both the criminal and civil case numbers.” (Doc.

5, p. 5). Because a new civil case will be opened automatically when the construed § 2255 motion is

filed, the present civil case should be closed.
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petitioner’s criminal case number in this court, 5:08cr18/RS. Within the body of the

pleading, petitioner identified his pleading as a petition for writ of habeas corpus. 

A new civil case (this case) was opened, and the pleading was docketed as a petition

for writ of habeas corpus under 28 U.S.C. § 2241. After careful consideration of all

issues raised by petitioner, it is the opinion of the undersigned that petitioner has

not demonstrated entitlement to proceed under § 2241, and that he must bring this

suit as a challenge to his federal sentence under 28 U.S.C. § 2255.

BACKGROUND AND PROCEDURAL HISTORY

In this habeas proceeding, petitioner challenges a judgment of conviction

entered by this court in United States of America v. Davron D. Dadamuratov, case

Number 5:08cr18/RS. (Doc. 1, p. 1). Reading the allegations of the petition and

taking judicial notice of this court’s own records in 5:08cr18/RS, the court finds that

on July 2, 2008, petitioner was found guilty by jury verdict of knowingly and willfully

infringing the copyrights of certain motion pictures, in violation of 17 U.S.C. §

501(a)(1), and 18 U.S.C. § 2319(a) and (b). (Doc. 1, p. 1; see also Case Number

5:08cr18/RS, Docs. 74-75). He was sentenced on October 1, 2008 to twenty-four

months of imprisonment followed by three years of supervised release. (Case

number 5:08cr18/RS, Doc. 90). Judgment was entered on October 7, 2008. (Id., Doc.

93). Petitioner’s conviction and sentence were affirmed on direct appeal on July 28,

2009. (Id., Doc. 129). The mandate issued August 26, 2009. (Id.). Petitioner has not

challenged his conviction or sentence through collateral review under 28 U.S.C. §

2255. 

In the instant § 2241 petition, petitioner challenges the validity of his

conviction on the grounds that he was denied his Sixth Amendment right to a fair

and impartial jury, because the community was exposed to an inflammatory media

account about his case. (Doc. 1, p. 2). As relief, petitioner asks the court to “grant

the relief to which he may be justly entitled in this proceeding.” (Id.). 

Case No: 5:10cv18/SPM/MD
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DISCUSSION

A petition pursuant to 28 U.S.C. § 2241 is not the proper vehicle for raising the

instant challenge. The execution or carrying out of an initially valid confinement is

generally the sole issue in a § 2241 action, as attacks on the validity of a conviction

or sentence must be asserted under § 2255. See United States v. Hayman, 342 U.S.

205, 72 S. Ct. 263, 96 L. Ed. 232 (1952); Broussard v. Lippman, 643 F.2d 1131 (5 Cir. th

Unit A Apr. 27, 1981); see, e.g., United States v. Jordan, 915 F.2d 622, 629 (11 Cir. 2 th

1990); Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111 (5 Cir. 1990). th

Section 2255 provides in pertinent part:

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 (emphasis added). The italicized language is known as the

“savings clause” and could allow habeas corpus review of a claim, but only in

limited circumstances:

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 offense; 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 (11 Cir. 1999). The burden of coming forward th

with evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255

remedy rests with the prisoner. Id.; McGhee v. Hanberry, 604 F.2d 9, 10 (5 Cir. th

1979).

In Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981) (en banc), the Eleventh Circuit

2 th

adopted as binding precedent all former Fifth Circuit decisions rendered before October 1, 1981.

Case No: 5:10cv18/SPM/MD
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In the instant case, petitioner’s claim is a § 2255 claim because he challenges

the validity of his conviction. Petitioner has made no showing that his claim meets

the three-prong test in Wofford. As petitioner has not demonstrated the inadequacy

of the § 2255 remedy, he should not be permitted to bring his claim by § 2241.

With that said, the court will look beyond the statutory label of petitioner’s

pleading and treat the instant petition as a motion to vacate, set aside, or correct

petitioner’s federal sentence under 28 U.S.C. § 2255. See United States v. Jordan,

915 F.2d 622, 624-25 (11 Cir. 1990) (“Federal courts have long recognized that they th

have an obligation to look behind the label of a motion filed by a pro se inmate and

determine whether the motion is, in effect, cognizable under a different remedial

statutoryframework.”); see also, e.g., McCarthy v. United States, 320 F.3d 1230, 1231

n. 1 (11 Cir. 2003) (holding that because habeas petitioner was required to bring his th

suit as a challenge under 28 U.S.C. § 2255 rather than 28 U.S.C. § 2254, district court

properly construed the § 2254 petition as a § 2255 motion); Means v. Alabama, 209

F.3d 1241, 1242 (11 Cir. 2000) (holding that prisoner must bring his suit under §

th

2255 rather than § 2254, and directing district court to construe § 2254 petition as

a § 2255 motion).

The recharacterized § 2255 motion will be petitioner’s first § 2255 motion. 

Therefore, in compliance with the mandates of Castro v. United States, 540 U.S. 375,

377, 124 S.Ct. 786, 789, 157 L.Ed.2d 778 (2003), petitioner is hereby informed that 3

In Castro, supra, the Supreme Court held that lower courts’ recharacterization powers are

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limited in the following way:

The limitation applies when a court recharacterizes a pro se litigant’s motion

as a first § 2255 motion. In such circumstances the district court must notify the pro

se litigant that it intends to recharacterize the pleading, 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. If the court fails to do so, the motion cannot be considered

to have become a § 2255 motion for purposes of applying to later motions the law’s

“second or successive” restrictions. § 2255, ¶ 8.

Case No: 5:10cv18/SPM/MD
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if this Report and Recommendation is adopted, the court will be recharacterizing his

§ 2241 petition as a first § 2255 motion. Petitioner is warned that this

recharacterization means that any subsequent § 2255 motion will be subject to the

restrictions on “second or successive” motions. See 28 U.S.C. § 2255(h). Upon the

filing of the instant construed § 2255 motion in petitioner’s federal criminal case,

petitioner should be given the opportunity to withdraw the construed § 2255 motion

or amend it so that it contains all the § 2255 claims petitioner believes he has. 

Accordingly, it is ORDERED:

1. The original Report and Recommendation (doc. 5) is VACATED, and this

Amended Report and Recommendation replaces the former in full. 

2. The Order (doc. 5) granting petitioner’s motion to proceed in forma

pauperis (doc. 2) REMAINS IS FULL FORCE AND EFFECT.

And, it is respectfully RECOMMENDED:

1. That petitioner’s § 2241 petition (doc. 1) be recharacterized as a motion to

vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255.

2. That the Clerk’s Office be directed to file, in petitioner’s federal criminal

case (Case Number 5:08cr18/RS), a copy of the following: the construed § 2255

motion (petitioner’s habeas petition) (doc. 1), this Amended Report and

Recommendation, and the Order adopting this Amended Report and

Recommendation.

3. That all further proceedings be filed and maintained in the criminal case file

(Case Number 5:08cr18/RS), and this case be administratively closed.

Castro, 540 U.S. at 383, 124 S.Ct. at 792.

Case No: 5:10cv18/SPM/MD
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4. That if the § 2241 petition is not recharacterized as a § 2255 motion, this

case be DISMISSED and the clerk be directed to close the file.

At Pensacola, Florida this 8 day of February, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 5:10cv18/SPM/MD