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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

FRITZ MAJOR,

Petitioner,

vs. Case No. 3:10cv130/WS/EMT

WILLIAM A. SCISM,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

This cause is before the court upon referral from the clerk. Petitioner initiated this action by

filing an application under 28 U.S.C. § 2241 for writ of habeas corpus in the United States District

Court for the Eastern District of Pennsylvania (Doc. 1). Noting that Petitioner (who is presently

incarcerated at FCI Allenwood, Pennsylvania) seeks to challenge a federal conviction in the United

States District Court for the Northern District of Florida, the district court in Pennsylvania ordered

that the action be transferred to this forum (Doc. 2). Service of the petition on Respondent has not

been directed. After consideration of the petition, the undersigned concludes that this action should

be dismissed because Petitioner is not entitled to the relief he seeks pursuant to 28 U.S.C. § 2241.

Background

Taking judicial notice of this district’s records, the court notes that in 1997 Petitioner was

convicted by a jury of conspiracy to possess with intent to distribute cocaine and cocaine base; he

was also convicted on a substantive charge of possession with intent to distribute cocaine base (see

United States of America v. Major, Case No. 3:96cr85/RV at Doc. 76). On March 13, 1998, the

Honorable Roger Vinson sentenced Petitioner to a term of incarceration of 364 months (id. at Docs.

88, 89). On direct appeal, the Eleventh Circuit affirmed Petitioner’s conviction and sentence (id.

at Doc. 147). In 2000 Petitioner sought collateral review under 28 U.S.C. § 2255 (id. at Docs. 155,

163), which Judge Vinson denied (id. at Docs. 194, 195; see also Report and Recommendation at
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Docs. 185, 189). Petitioner unsuccessfully appealed this decision (id. at Docs. 218, 232). In 2008,

Petitioner filed a motion to reduce his sentence in accordance with the revised base offense levels

for crack cocaine authorized by Guideline Amendment 706 and Policy Statement 1B1.10 (id. at Doc.

259), which motion Judge Vinson also denied (id. at Doc. 275). 

In the instant § 2241 petition, Petitioner challenges the validity of his sentence on the ground

that he was wrongly classified—and sentenced—as a career offender based on a juvenile conviction

(Doc. 1 at 6). As relief, Petitioner seeks to have his enhanced sentence vacated (id. at 8).

Discussion

A challenge on constitutional grounds to the imposition or validity of a conviction or

sentence typically must be brought pursuant to 28 U.S.C. § 2255. See United States v. Hayman, 342

U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232 (1952); Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir.

2003). By contrast, an attack on the execution or carrying out of an initially valid confinement

should be brought pursuant to 28 U.S.C. § 2241. See Broussard v. Lippman, 643 F.2d 1131 (5th Cir.

Unit A Apr. 27, 1981).1 When a defendant has previously filed a § 2255 motion, he must apply for

and receive permission from the court of appeals before filing a successive § 2255 motion. 28

U.S.C. §§ 2244(b)(3), 2255(h). If the defendant was denied relief in his prior § 2255 motion he may

not circumvent the rule restricting successive motions simply by filing a petition under § 2241. See

Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999). Although jurisdiction under § 2241 may

be found through what has been referred to as “the savings clause” of § 2255(e),2 this remedy is

available only if Petitioner establishes that the § 2255 remedy is inadequate or ineffective. See

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

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

 2 The “savings clause” provides:

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(e).

Case No. 3:10cv130/WS/EMT
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Wofford, 177 F.3d at 1245; McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979); Lane v. Hanberry,

601 F.2d 805 (5th Cir. 1979). In Wofford, the Eleventh Circuit stated:

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.

177 F.3d at 1244. In order for a petitioner to avail himself of the § 2241 remedy, all three Wofford

criteria must be met. See id. A petitioner may not argue issues raised in his habeas petition until

he has “open[ed] the portal” to § 2241 by demonstrating that the savings clause applies. Id. at 1244

n.3.

In the instant case, Petitioner’s claim that his sentence is invalid because he was wrongly

classified as a career offender based on a juvenile conviction must be brought pursuant to § 2255

because it challenges the validity of his sentence as imposed rather than as executed. Petitioner does

not allege that his claim meets the three-prong test in Wofford, nor can he. Thus Petitioner may not

rely on the savings clause of § 2255 to file this § 2241 petition, which petition therefore should be

dismissed. See Cano v. Warden, 358 Fed. App’x 107 (11th Cir. 2009).

Accordingly, it is respectfully RECOMMENDED:

That the petition for writ of habeas corpus filed under 28 U.S.C. § 2241 (Doc. 1) be

DISMISSED.

At Pensacola, Florida, this 18th day of May 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) 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 the magistrate judge and 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 (11th Cir. 1988).

Case No. 3:10cv130/WS/EMT