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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DANIEL WRIGHT, 

Petitioner,

vs. Case No. 4:10cv294-MP/WCS

UNITED STATES OF AMERICA,

Respondent.

 /

REPORT AND RECOMMENDATION TO DENY§ 2241 PETITION

Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §

2241. Doc. 1. 

Petitioner attempts to challenge, by habeas corpus petition, the sentence

imposed in this district, Case No. 4:99cr22-RH/WCS. Doc. 1. Specifically, he

challenges the enhancement of his sentence for being a second or repeat offender

under 21 U.S.C. § 841(b)(1)(A), resulting in a minimum mandatory term of 20 years. 

See § 841(b)(1)(A) (prescribing a term of ten years to life for certain controlled

substance offenses, but if committed "after a prior conviction for a felony drug offense

has become final," then the term is 20 years to life). 

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That judgment was affirmed on direct appeal and a 28 U.S.C. § 2255 motion was

denied on the merits. Docs. 97 (mandate), 151, 154 and 155 (report and

recommendation, order denying § 2255 motion, and judgment) in the criminal case file.1

A certificate of appealability was denied by this court and the court of appeals. Docs.

161 and 171. Aside from the § 2255 proceedings, this court has noted:

Mr. Wright filed in this court too many other motions, notices, and

affidavits to count; there were at least 30 motions, not counting the notices

and affidavits. He appealed, or tried to, on additional occasions. He did

everything a defendant could do to avoid Congress's effort, in the AntiTerrorism and Effective Death Penalty Act, to avoid endless and wasteful

duplicative challenges to a conviction and sentence. 

Doc. 252, p. 4 (emphasis added); see also doc. 267 (denying Defendant's motion for

relief under U.S.S.G. Amendment 706) (citing doc. 252, noting "dozens of more recent

attacks on the conviction and sentence have been rejected."). Indeed, in this case and

the § 2255 proceedings, Defendant was ultimately directed not to file anything until a

recommendation was entered. Doc. 15 (this case); doc. 151, pp. 1-2 (noting procedural

history).

In filing this petition, Defendant continues doing all he can to avoid the efforts of

Congress "to avoid endless and wasteful duplicative challenges to a conviction and

sentence." Relief from a federal sentence is generally only available by motion filed

pursuant to § 2255, which provides in relevant part: 

A prisoner in custody under sentence of a court established by Act of

Congress 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

1

 Hereafter, references to any document number higher than 15 (the most

recently filed document in this case to date) are to documents in the criminal case file. 

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is otherwise subject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). 

Under the "savings clause" of § 2255, a petition for writ of habeas corpus filed by

a prisoner authorized to seek relief under § 2255 "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." § 2255(e).

Petitioner claims entitlement to proceed under the savings clause under the

rationale of Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010) and United States

v. Bowden, 2009 WL 32755 (11th Cir.) (unpublished), cert. denied, --- U.S. ----, 130

S.Ct. 1014, 175 L.Ed.2d 619 (2009). Doc. 1, pp. 1-2 and attachment (copy of Bowden

case). He assert claims actual innocence of being a repeat offender and that was

sentenced for the non-existent offense of being a repeat offender under § 841(b)(1)(A)

"having not [been] charged nor found guilty of the enhanced penalties of (b)(1)(A)." 

Doc. 1, p. 6 (footnote omitted, discussing 21 U.S.C. § 8512). 

The Gilbert opinion cited by Defendant is no longer good law. It was vacated,

and on rehearing the district court's denial of relief, which had been reversed in the

2

 Pursuant to § 851(a), the Government must file an information of its intent to

seek increased punishment by reason of one or more prior convictions. The

Government filed a notice of intent to seek enhancement; indeed, in the § 2255 motion

Defendant asserted ineffective assistance based on counsel's failure to object to the

notice. Doc. 151 (report and recommendation) at p. 6. The notice of intent (doc. 32) is

not available in the ECF (Electronic Case Filing) but the file itself was before me when

the report and recommendation was written in 2003. As noted there, the conviction

referenced in the notice was to the judgment of April 22, 1994, out of the Circuit Court in

Duval County, a copy of which was supplied by the Government with doc. 128. Id., p. 6,

n. 2; see also doc. 128, Att. 2 (pp. 40-46 in ECF). 

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opinion relied on by Defendant, was affirmed. Gilbert v. United States 640 F.3d 1293,

1323 (11th Cir. 2011). 

The petitioner in Gilbert sought § 2241 relief claiming that – due to subsequent

legal developments – the sentencing guidelines were improperly applied, and he was

barred from seeking relief by second or successive § 2255 motion under § 2255(h). Id.,

at 1307-08. The court determined that "the savings clause does not authorize a federal

prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by §

2255(h), that the sentencing guidelines were misapplied in a way that resulted in a

longer sentence not exceeding the statutory maximum." 640 F.3d at 1323. 

To proceed under the savings clause, a claim must be based upon a retroactively

applicable Supreme Court decision, establishing the petitioner was convicted for a

nonexistent defense; and circuit law squarely foreclosed the claim at the time it should

have been raised at trial, appeal, or first § 2255 motion. Wofford v. Scott, 177 F.3d

1236, 1244 (11th Cir. 1999) (footnote omitted). "[T]he only sentencing claims that may

conceivably be covered by the savings clause are those based upon a retroactively

applicable Supreme Court decision overturning circuit precedent." Id. at 1245 (footnote

omitted). See also Gilbert, 640 F.3d at 1319 (noting the Wofford holding "is simply that

the savings clause does not cover sentence claims that could have been raised in

earlier proceedings.") (footnote and citation to Wofford omitted). Actual innocence does

not establish entitlement to proceed under the savings clause; it is only considered

"[o]nce the savings clause of § 2255 applies to open the portal to a § 2241 proceeding .

. . ." 177 F.3d at 1245 (citation omitted). See also 640 F.3d at 1318-1323 (discussing

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the savings clause and actual innocence in the context of sentencing claims)

(discussing Wofford, other citations omitted). 

The petition identifies no new Supreme Court case overturning circuit precedent. 

The new Eleventh Circuit cases relief on by Petitioner are not Supreme Court cases. 

The earlier Gilbert case is not the law of this circuit, and the unpublished Bowden case

is not binding precedent. See United States v. Anthony, 345 Fed.Appx. 459, n. 4

(unpublished) (11th Cir. 2009) (finding reliance on Bowden "misplaced" as "[w]e are not

bound by unpublished opinions," and the facts were also distinguishable). A vacated

opinion cannot be retroactive or overturn formerly binding precedent. The unpublished

opinion was on direct appeal (with no issue of retroactivity), and also did not overturn

precedent; indeed, it cited cases going back to 1974. 

In an attempt to salvage the § 2241 petition, Defendant claims reliance on new

Supreme Court cases. In the supplement he cites United States v. O'Brien, U.S. ,

130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). Doc. 5.3 Defendant claims that the Court's

analysis in O'Brien shows by analogy that § 841(b)(1)(A)-(C) sets forth criminal

offenses, and also "supports [his] actual innocence claim, that he was sentenced, in

part, for a nonexistent offense – being a repeated second offender pursuant to (b)(1)

(A), having not [been] charged nor found guilty of the enhanced penalties of (b)(1)(A)." 

Id., p. 2 (internal quotation marks omitted). 

3

 The motion requesting permission to supplement (doc. 5) was granted and the

Government directed to address O'Brien, if relevant, in the answer or other response to

the § 2241 petition. Doc. 6. The Government responds that it does not apply, but

supplies no argument. Doc. 7, p. 11, n. 8. 

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In his "reply / amended motion clarifying arguments with supplemented newly

decided legal authorities," Defendant explains that prior to the supplement he was

relying on the Gilbert opinion, and (as now supplemented) he raises two arguments:

that the indictment failed to charge and the jury failed to find beyond a reasonable doubt

the requisite drug quantities, a claim supported by O'Brien; and that the Government's

notice under § 851 was improper, a claim supported by Bowden. Doc. 8, pp. 2-3. 

O'Brien applied Apprendi and its progeny4 to a fact which increased the

prescribed penalty for a firearm offense.5 Whether Defendant's challenge is to drug

quantity or the enhancement under § 851, the Apprendi line of cases do not apply

retroactively on collateral review,6 and do not apply to enhancements based on the fact

of a prior conviction. See James v. United States, 550 U.S. 192, 214, n. 8, 127 S.Ct.

4

 In Apprendi, the Court "confirm[ed] the opinion that we expressed in [Jones v.

United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 1224, n. 6, 143 L.Ed.2d 311

(1999)]. Other than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120

S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). In Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), the Court applied Apprendi to a

sentence enhanced under state sentencing guidelines; and in United States v. Booker,

543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court applied Apprendi and

Blakely to the Federal Sentencing Guidelines. 

5

 The O'Brien Court determined that, under a statute prohibiting the use or

carrying of a firearm in relation to certain offenses, the fact that the firearm was a

machine gun, which substantially increased the sentence, was an element of the

offense to be charged and proved beyond a reasonable doubt under Apprendi. 

6

 Varela v. United States, 400 F.3d 864, 867 (11th Cir.), cert. denied, U.S. ,

126 S.Ct. 312 (2005) (Blakely and Booker do not apply retroactively on collateral

review); In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005) (the rule recognized

in Blakely and Booker has not been "made retroactive to cases on collateral review by

the Supreme Court" for purposes of authorizing a second or successive motion under §

2255).

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1586, 1600, n. 8, 167 L.Ed.2d 532 (2007) ("we have held that prior convictions need not

be treated as an element of the offense for Sixth Amendment purposes."), citing

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350

(1998). 

In his amended motion, Defendant argues O'Brien and references CarachuriRosendo v. Holden, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010)7

 and Begay v. United

States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).8 Doc. 8, pp. 2-10. He

claims they are retroactive, circuit-busting Supreme Court decisions. Id., pp. 8-10. He

contends that under Begay, O'Brien, Carachuri-Rosendo, and Gilbert, he need only

show a defective sentencing and prejudice, not actual innocence of the offense or a

defective trial. Id., pp. 11-13. 

7

 In Carachuri-Rosendo, the petitioner faced deportation after committing two

misdemeanor drug offenses in Texas; he was sentenced to 20 days on the first and 10

days on the second. 130 S.Ct. at 2580. The issue was whether he was ineligible to

seek discretionary cancellation of removal for his conviction of an "aggravated felony." 

8 U.S.C. § § 1101(a)(43) (defining aggravated felony) and 1229b(a) (cancellation of

removal for certain permanent residents). Although he could have been (but was not)

charged as a repeat offender in the second case, and the repeat offender offense would

have been punishable as a felony, "[t]he mere possibility that the defendant's conduct,

coupled with facts outside of the record of conviction, could have authorized a felony

conviction under federal law is insufficient to satisfy the statutory command that a

noncitizen be 'convicted of a[n] aggravated felony' before he loses the opportunity to

seek cancellation of removal. 8 U.S.C. § 1229b(a)(3)." 130 S.Ct. at 2589.

8

 In Begay the Court held "that the offense of driving under the influence was not

a 'violent felony' within the definition contained in 18 U.S.C. 924(e)(2)(B)(ii), an ACCA

[Armed Career Criminal Act] enhancement provision." Gilbert, 640 F.3d at 1301

(citation to Begay omitted). The Eleventh Circuit had previously determined that Begay

effectively overruled its prior holding that carrying a concealed firearm was a "crime of

violence" for purposes of a career offender enhancement under U.S.S.G. § 4B1.1. Id.,

at 1301-02, citation and footnote omitted). 

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In his motion requesting permission to supplement, Defendant asks to

supplement his § 2241 petition with United States v. Shannon, 631 F.3d 1187 (11th Cir.

2011). Doc. 11. He claims he submitted his § 2241 petition within one year of Johnson

v. United States, 130 S.Ct. 1260, 176 L.Ed.2d 1 (2010),9 which he claims "is a

substantive rule of law that retroactively applies to cases on collateral review." Id., p. 1. 

He claims that Shannon supports his claim of actual innocence, as his prior conviction

for trafficking in cocaine was actually for purchasing cocaine, which is not a controlled

substance offense. Id., p. 2. The Government responds that Shannon was before the

Eleventh Circuit on direct appeal so is inapplicable here, and that the Eleventh Circuit

had issued its en banc opinion in Gilbert. Doc. 13, pp. 1-3. 

None of the recent Supreme Court (or Eleventh Circuit) cases cited by Defendant

supports a sentencing challenge based on a retroactively applicable, Supreme Court

decision, overturning Eleventh Circuit precedent, and unavailable at the time of the §

2255 proceedings, and has not demonstrated actual innocence. He is not entitled to

proceed by habeas corpus petition pursuant to the savings clause of § 2255(e).

9

 In Johnson the Court held that because “battery” as defined by Florida law

could be shown by slight physical contact, it did not constitute a "violent felony" for

purposes of the ACCA, which requires at least three serious drug offenses and or

violent felonies as those terms are defined in 18 U.S.C. § 924(e)(2)(A) and (B). In

Shannon, the district court could not determine precise the act for which the defendant

was convicted under state law, the least prohibited act in the state statute of conviction

was for purchase of cocaine, and as that is not included in the career offender definition

of controlled substance offenses the conviction should not have counted. 631 F.3d at

1188-89. A copy of the state court judgment is attached to doc. 128, as noted supra,

and reflects that Defendant pleaded guilty in state court to the felony of trafficking in

cocaine (count one). Doc. 128, p. 40. Trafficking in cocaine is a controlled substance

offense; moreover § 841(b)(1)(A) references simply "a prior conviction for a felony drug

offense," and this was clearly a felony drug offense. 

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It is therefore respectfully RECOMMENDED that the § 2241 petition for writ of

habeas corpus, challenging Petitioner's conviction out of this district in case number

4:99cr22-RH, be DENIED as Petitioner has failed to demonstrate that the § 2255

remedy is inadequate or ineffective under § 2255(e). 

IN CHAMBERS at Tallahassee, Florida, on December 28, 2011. 

 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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