IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

NATASKA HOWARD,

Petitioner,

v. Case No. 4:10cv408-MP/CAS

WARDEN W.T. TAYLOR,

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

On September 13, 2010, Petitioner Nataska Howard, proceeding pro se, filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and a supporting

memorandum. Doc. 1. Respondent filed a response to the petition (Doc. 11) with

exhibits, to which Petitioner filed a reply (Doc. 12). Petitioner has also filed a request for

leave to file a motion to supplement (Doc. 14), as well as the motion to supplement

(Doc. 15). 

The matter was referred to the undersigned United States Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida

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Local Rule 72.2(B). After careful consideration, the undersigned concludes that

Petitioner has not demonstrated entitlement to proceed under § 2241 and, accordingly,

this action should be dismissed.

Background and Procedural History 

Following a jury trial in July 2006, the United States District Court for the

Southern District of Florida, Case No. 06-20177-CR-MARTINEZ, Petitioner was found

guilty of one count of conspiracy to possess with intent to distribute five or more grams

of cocaine base (commonly known as crack cocaine) and one count of possession with

intent to distribute five or more grams of cocaine base (crack cocaine) possession of a

firearm by a felon, in violation of 21 U.S.C. §§ 846 and 841(a)(1), in connection with

events that took place on March 7, 2006. See United States v. Howard, Case No.

1:06cr20177-JEM, Verdict, Doc. 54 (S.D. Fla. July 14, 2006), and Judgment, Doc. 70

(S.D. Fla. Oct. 17, 2006).1

 Prior to the trial, the Government had filed a notice of its

intent to seek enhanced penalties, pursuant to 21 U.S.C. § 851. See id. Notice, Doc.

32. In October 2006, Petitioner was adjudicated guilty and sentenced pursuant to the

Sentencing Reform Act of 1984, to 360 months of imprisonment followed by 8 years of

supervised release on each count, to be served concurrently. See id. Judgment, Doc.

70. This prison term reflected the lowest end of the applicable guideline range

implicated by Petitioner’s classification as a career offender under Section 4B1.1 of the

Sentencing Guidelines. See id. Presentence Investigation Report (PSR), Doc. 72. 

1

The Docket Sheet for United States v. Howard, Case No. 1:06cr20177-JEM, is

attached as Exhibit 1 to the Government’s Response in this case. See Doc. 11, Ex. 1.

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Petitioner appealed the judgment and sentence to the Eleventh Circuit Court of

Appeals, Case No. 06-15802. See id. Notice of Appeal, Doc. 73 (S.D. Fla. Oct. 23,

2006). The appellate court affirmed the convictions and sentence on October 31, 2007. 

See id. Mandate, Doc. 88 (S.D. Fla. Dec. 4, 2007); United States v. Howard, 252 F.

App’x 955 (11th Cir. 2007). In particular, the appellate court rejected, on de novo

review, Petitioner’s argument that the trial court erred in classifying her as a career

offender under U.S.S.G. § 4B1.1(a) because her prior conviction in state court for

improper exhibition of a firearm on or near school property was not a crime of violence

within U.S.S.G. § 4B1.2(a). Howard, 252 F. App’x at 959-61. The court also rejected

Petitioner’s argument that her sentences were unreasonable and disproportionate to the

crimes at issue. Id. at 961-62.

In February 2008, Petitioner filed a motion to vacate sentence under 28 U.S.C.

§ 2255 and a supporting memorandum. See United States v. Howard, Case No.

1:06cr20177-JEM, Motion to Vacate and Memorandum, Docs. 90 and 91 (S.D. Fla. Feb.

19, 2008); United States v. Howard, No. 1:08cv20411-JEM (case number assigned for

§ 2255 proceeding).2

 The magistrate judge entered a report and recommendation that

the motion be denied. See United States v. Howard, Case No. 1:08cv20411, Doc. 11

(S.D. Fla. Sept. 17, 2008). The district court adopted the report and recommendation,

and denied Petitioner’s motion. See id. Docs. 12 (order), 15 (amended order). 

2

The Docket Sheet for United States v. Howard, Case No. 1:08cv20411-JEM is

attached as Exhibit 3 to the Government’s Response in this case. See Doc. 11, Ex. 3. 

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Petitioner tried to appeal, but the court denied a certificate of appealability. See id.

Docs. 16, 17, 18, 29. 

Petitioner also filed, in February 2008, a motion to reduce sentence pursuant to

18 U.S.C. § 3582. See United States v. Howard, Case No. 1:06cr20177-JEM, Doc. 92

(S.D. Fla. Feb. 28, 2008). The district court denied that motion. See id. Doc. 94.

In June 2009, Petitioner filed another § 3582 motion. See id. Doc. 96 (S.D. Fla.

2009). The district court denied this motion as previously denied. Id. Doc. 94. 

Petitioner appealed. Id. Doc. 103. The Eleventh Circuit affirmed the district court’s

denial of the § 3582 motion. See id. Doc. 110; United States v. Howard, 372 F. App’x

978 (11th Cir. 2010). In particular, the appellate court explained: 

Howard’s arguments that she is not a career offender and that her

sentence is unreasonable are groundless. Howard has already presented

these issues before this Court in United States v. Howard. 252 Fed. Appx.

955. In that appeal, this Court affirmed the district court’s determination

that Howard was a career offender under U.S.S.G. § 4B1.1, and held that

the sentence applied was reasonable. Id. at 959-962. Here, Howard has

not presented an argument which falls under the three exceptions to the

law-of-the-case doctrine in her § 3582 motion. Therefore, to the extent

that Howard attempts to argue that she was improperly sentenced as a

career offender and that her sentence was unreasonable, the contentions

are foreclosed by the law-of-the-case doctrine.

Howard, 372 F. App’x at 979. The United States Supreme Court denied Howard’s

petition for writ of certiorari. Howard v. United States, 131 S.Ct. 345 (2010). 

Petitioner filed her § 2241 petition and supporting memorandum in this case on

September 13, 2010. Docs. 1 and 1-1. As indicated in this Court’s earlier order,

Petitioner raises two claims. Doc. 7. 

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First, Petitioner asserts she is actually innocent of her sentence fo a crack

cocaine offense pursuant to the Fair Sentencing Act of 2010 (FSA), which Petitioner

claims should apply retroactively. See Doc. 1-1 at 6-93

; Doc. 7 at 2. As indicated in this

Court’s earlier order, the FSA does not apply retroactively and Petitioner is not

otherwise entitled to relief on this claim. See Doc. 7 at 3; United States v. Gomes, 621

F.3d 1343, 1346 (11th Cir. 2010). 

Second, Petitioner claims she is “actually, factually, and legally innocent of being

a career offender.” Doc. 1-1 at 10. Petitioner asserts she entered a guilty plea only to

possession of a weapon “and not to any violence with the weapon, especially not to any

firing of the weapon.” Id.; see Doc. 7 at 3. Thus, according to Petitioner, this offense

was improperly used as a “crime of violence” in sentencing her as a career offender. 

Doc. 1-1 at 10-11. In support of this claim, Petitioner cites the now-vacated opinion in

Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010). Doc. 1-1 at 8; see Doc. 7 at 3. 

Petitioner also cites, among others, Johnson v. United States, 130 S.Ct. 1265 (2010),

Begay v. United States, 553 U.S. 137 (2008), and United States v. Archer, 531 F.3d

1347 (11th Cir. 2008). Doc. 1-1 at 8; see Doc. 7 at 3-4.

In its response, the Government addressed this claim. See Doc. 11. The

Government first contends Petitioner has failed to demonstrate the availability of the

savings clause of § 2255 allowing her to file a § 2241 petition. Id. at 5-6. The

Government points out that Petitioner raised the same argument she raises here, in her

direct appeal to the Eleventh Circuit – that her prior offense was not a crime of violence

3

Page references correspond to pages as indicated in Electronic Case Filing.

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and should not have been used to enhance her sentence. Id. at 6, 10. Petitioner then

sought relief pursuant to § 2255, ultimately including the issue of her enhanced

sentence, but that petition was denied. Id. at 6-7; see Doc. 15 for Case No.

1:08cv20411. Petitioner appealed that denial, but the Eleventh Circuit denied her

certificate of appealability. Thus, the Government asserts, given the plain meaning of

the savings clause of § 2255, that clause is not available to Petitioner:

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) (emphasis added). 

The Government also points out that the Eleventh Circuit, in Petitioner’s direct

appeal, addressed and rejected Petitioner’s argument about the enhanced sentence. 

Doc. 11 at 7. As the Eleventh Circuit later stated, in affirming the denial of Petitioner’s

§ 3582 motion, that ruling became law of the case. Id.; see Howard, 372 F. App’x at

979. The Government asserts Petitioner has failed to demonstrate her remedy under

§ 2255 was inadequate or ineffective to test the legality of her detention. Further, the

Government argues Petitioner has not demonstrated her “actual innocence.” Doc. 11 at

8. According to the Government, Petitioner’s reliance on Begay and Gilbert is

misplaced, and Petitioner is not entitled to proceed under the § 2255 savings clause. 

Doc. 11 at 5, 9-10. 

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Analysis

The power to issue the writ of habeas corpus was granted to the federal courts

by the Judiciary Act of 1789. See United States v. Hayman, 342 U.S. 205 (1952). The

habeas remedy is now codified in 28 U.S.C. § 2241, subsection (c)(3) of which provides

that the writ of habeas corpus shall not extend to a prisoner unless the prisoner is “in

custody in violation of the Constitution or laws or treaties of the United States.” As

noted in Hayman, habeas corpus applications must be brought in the district of

confinement. 342 U.S. at 213. 

Because courts with federal prisons in their jurisdictional boundaries became

inundated with habeas petitions, and because the materials, witnesses, and other

evidence which had a significant bearing on the determination of the legality of a

sentence were generally located in the district where sentence was imposed rather than

where the prisoner was confined, in 1948 Congress enacted § 2255 of Title 28. See

Hayman, 342 U.S. at 212–14, 218; see also Wofford v. Scott, 177 F.3d 1236, 1239

(11th Cir. 1999). The language of § 2255 suggests, and the Eleventh Circuit has

expressly concluded, that this statute was intended to channel challenges to the legality

of the imposition of a sentence, while leaving § 2241 available to challenge the

continuation or execution of an initially valid confinement. See Antonelli v. Warden,

U.S.P. Atlanta, 542 F.3d 1348, 1351–52 (11th Cir. 2008); United States v. Jordan, 915

F.2d 622, 629 (11th Cir. 1990) (explaining § 2255 is primary method of collateral attack

on federally imposed sentence). Thus, § 2241 provides an avenue for challenges to

matters such as the administration of parole, prison disciplinary actions, prison

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transfers, and certain types of detention. See Antonelli, 542 F.3d at 1352 (petition

challenging decision of federal Parole Commission is properly brought pursuant to

§ 2241); Thomas v. Crosby, 371 F.3d 782, 810 (11th Cir. 2004) (petition challenging

pre-trial detention is properly brought pursuant to § 2241); Bishop v. Reno, 210 F.3d

1295, 1304 n.14 (11th Cir. 2000) (petition challenging Bureau of Prisons’ administration

of service credits, including calculation, awarding, and withholding, involves execution

rather than imposition of sentence; thus, it is a matter for habeas corpus review). A

collateral attack on the validity of a federal conviction and sentence, is properly brought

under 28 U.S.C. § 2255 in the district of conviction. See, e.g., Antonelli, 542 F.3d at

1351-52; Sawyer v. Holder, 326 F.3d 1353, 1365 (11th Cir. 2003); Jordan, 915 F.2d at

629. A defendant may not circumvent the procedural limitations on § 2255 motions

simply by styling his motion as a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. See, e.g., Antonelli, 542 F.3d at 1351.

 Title 28 U.S.C. § 2255(e) 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(e) (emphasis added); Wofford, 177 F.3d at 1238 (quoting § 2255 with

added emphasis). The italicized language is known as the “savings clause,” and could

allow habeas corpus review of a claim barred as successive under § 2255, but only in

limited circumstances:

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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, 177 F.3d at 1244; Darby v. Hawk-Sawyer, 405 F.3d. 942, 945 (11th Cir. 2005). 

Failure to meet a single prong means a petitioner’s claim fails. See Wofford, 177 F.3d

at 1244; Flint v. Jordan, 514 F.3d 1165, 1168 (11th Cir. 2008). “A petitioner who has

filed and been denied a previous § 2255 motion may not circumvent the successive

motion restrictions simply by filing a petition under § 2241.” Darby, 405 F.3d at 945

(citing Wofford, 177 F.3d at 1245).

In this case, Howard’s § 2241 petition challenges the validity of her sentence, not

the execution thereof. Such a challenge is properly brought pursuant to § 2255, not

pursuant to § 2241. See, e.g., Antonelli, 542 F.3d at 1351-52; Sawyer, 326 F.3d at

1365; Jordan, 915 F.2d at 629. 

Further, Howard’s § 2241 petition is an attempt to circumvent the restrictions on

successive § 2255 motions. Howard filed a previous § 2255 motion, which the district

court denied with prejudice. The Eleventh Circuit denied a certificate of appealability

when Howard tried to appeal the denial of her § 2255 motion, finding she had failed to

make a substantial showing of a denial of a constitutional right. Petitioner has been

heard, on direct appeal and in her § 2255 proceeding, on her claim concerning her

classification as a career offender and the use of her prior conviction for improper

exhibition of a firearm. Therefore, Petitioner cannot meet the rigorous standard of the

savings clause. See Lancaster v. Warden, FCC Coleman-Medium, 433 F. App’x 783,

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784 (11th Cir. 2011) (affirming dismissal of § 2241 petition in which petitioner argued he

was actually innocent of being career offender because his predicate offenses were

related, and explaining petitioner “previously raised the same argument on direct appeal

so it too cannot meet the rigorous standard of the savings clause”). 

To the extent Petitioner relies on Gilbert, in support of her argument that she is

entitled to § 2241 relief because she is actually innocent of being a career offender,

such reliance appears misplaced. As the Eleventh Circuit explained in the en banc

Gilbert opinion, the petitioner there (as here) “was not charged with, nor was he

convicted of being a career offender.” 640 F.3d at 1320. “A defendant who is convicted

and then has the § 4B1.1 career offender enhancement, or any other guidelines

enhancement, applied in the calculation of his sentence has not been convicted of being

guilty of the enhancement.” Id. In Gilbert, the Eleventh Circuit held 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.” Id.

at 1323. Even considering this holding, the statutory maximum for each of Petitioner’s

two offenses is 40 years, see 21 U.S.C. §§ 841(b)(1)(B)(iii), 846 (2006), and thus her

concurrent 360-month (30-year) prison sentences, followed by concurrent 8-year terms

of probation, does not exceed the statutory maximum. 

Finally, as indicated above, Petitioner recently filed a motion seeking to

supplement her § 2241 petition. Doc. 14. In her motion to supplement, Petitioner again

challenges the use of her prior state offense for possession of a weapon to classify her

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as a career offender. Doc. 15. Petitioner asserts she “was a victim in this state prior

[offense] that was used to enhance her to career offender status.” Id. Even considering

this motion, and allowing such amendment, Petitioner is not entitled to relief under

§ 2241. As the Eleventh Circuit indicated in the opinion for Petitioner’s direct appeal,

because Petitioner failed to object to the facts set forth in her PSI regarding the

circumstances of her prior conviction, she admitted them. Howard, 252 F. App’x at 961. 

That opinion indicates “Howard was at an elementary school, pulled out a firearm, and

began firing several rounds at an unknown male who had stolen her bicycle,” and “[s]he

chased the unknown male across the physical education filed while discharging the

firearm.” Id. To the extent Petitioner now asserts an ineffective assistance of counsel

claim for the failure to challenge the use of her prior conviction based on her status as a

victim, see Doc. 15, Petitioner had the opportunity to raise such a claim in her § 2255

motion and did not do so, see Howard, Case No. 1:08cv20411, Doc. 15 (order adopting

report and recommendation, Doc. 10, to deny § 2255 motion). Petitioner’s underlying

case reflects that counsel did file objections to the PSI and the Government’s attempt to

classify Petitioner as a career offender based on this prior offense. See Howard, Case

No. 1:06cr20177-JEM, Docs. 62 and 64. Moreover, Petitioner entered a plea to the

prior state offense years ago, see Howard, 252 F. App’x at 960 (citing 1997 version of

Florida Statutes with reference to Petitioner’s prior offense), and her time for raising a

challenge to the validity of that plea has long expired, see Florida Rule of Criminal

Procedure 3.850.

Conclusion

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In summary, review under § 2241 appears to be unavailable because Petitioner

challenges the validity of her sentence, not the execution thereof. Further, the § 2241

petition is an attempt to circumvent the restrictions on successive § 2255 motions. 

Accordingly, this § 2241 petition should be dismissed.

Accordingly, it is respectfully RECOMMENDED:

1. Petitioner’s Motion for Request to Supplement the § 2241 motion (Doc. 14) be

GRANTED and the supplement (Doc. 15) be ACCEPTED. 

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

DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on July 26, 2012.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within fourteen (14) days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. A party may respond to another

party's objections within ten (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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