IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

VINCENT L SMITH,

Petitioner,

v. CASE NO. 1:10-cv-00230-MP -GRJ

UNITED STATES OF AMERICA, and

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF FLORIDA,

Respondents.

____________________________/

REPORT AND RECOMMENDATION

Petitioner, a federal inmate incarcerated at FCC Coleman, initiated this case by

filing a petition for a writ of habeas corpus under 28 U.S.C. § 2241, and is proceeding

pursuant to an amended petition. Doc. 5. For the following reasons, the undersigned

recommends that the petition be dismissed.

Petitioner’s claims stem from his Northern District of Florida jury-trial conviction

for conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C

§§ 841 and 846. United States v. Smith, Case No. 5:00-cr-0021-SPM-AK (N.D. Fla.

2/27/02), Doc. 200 (judgment). Petitioner received an enhanced life sentence under 21

U.S.C § 841(b)(1)(A)(iii) based on prior controlled-substance felony offenses. See id.; 1

Doc. 26 (Notice of Enhancement pursuant to 21 U.S.C § 851, setting forth three prior

state felony controlled-substance convictions). Petitioner’s conviction and sentence

Petitioner was also convicted of one count of money laundering, in violation of 1

18 U.S.C § 1956(a)(1)(B)(I); and one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C § 922(g)(1). 
were affirmed on direct appeal. Id., Doc. 244. Petitioner filed a motion to vacate under

28 U.S.C § 2255 on the grounds of ineffective assistance of counsel. Id. Doc. 245. 

The Court denied the motion on the merits. Id. Docs. 253, 259. Petitioner did not

appeal.

In the instant petition, Petitioner contends that he is entitled to habeas corpus

relief because the Court’s jury charge did not require that the jury find any of the

aggravating factors necessary to trigger enhanced sentencing, nor did the jury’s verdict

find that he was “actually” guilty of any of the necessary enhancement factors. Doc. 5. 

Petitioner names as respondents the United States and this Court.

The federal habeas statute provides that the proper respondent to a habeas

petition is “the person who has custody over [the petitioner].” 28 U.S.C. § 2242. This

custodian is “the person with the ability to produce the prisoner’s body before the

habeas court.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (habeas statutes

“contemplate a proceeding against some person who has the immediate custody of the

party detained, with the power to produce the body of such party before the court or

judge, that he may be liberated if no sufficient reason is shown to the contrary.”)

(internal quotation and citation omitted). Thus, § 2241 petitions may be brought only in

the district court for the district in which the inmate is confined. 28 U.S.C. § 2242;

Padilla, 542 U.S. at 442 (court issuing the writ must have jurisdiction over the

custodian); Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir.1991).

Petitioner is in the immediate custody of the Warden of FCC Coleman, within the

Middle District of Florida, and therefore Petitioner should have filed his petition in that

district, naming the Warden as respondent. Although the Court could transfer the

Case No: 1:10-cv-00230-MP -GRJ -2-
petition to the Middle District of Florida for further proceedings, as explained below it is

clear from the petition that Petitioner is not entitled to habeas corpus relief. Therefore,

in the interest of judicial economy, the undersigned recommends that the petition be

dismissed for lack of jurisdiction over the proper respondent rather than transferred. 

See, e.g., Green v. Warden, USP Lewisburg, No. CV508-018, 2009 WL 960104 at *4

n.1 (S.D. Ga. Apr. 8, 2009) (declining to re-transfer § 2241 petition from district of

conviction back to district of confinement where it was originally filed, because it was

clear that petitioner was not entitled to relief and transferee court opted not to “engage

in game of judicial ‘tag’”).

Under the circumstances presented, Petitioner is expressly precluded by § 2255

from pursuing any remedies under § 2241. Section 2255 states that an application

such as this “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 denied him

relief[.]” 28 U.S.C § 2255 (emphasis added). 

Under limited circumstances, a Petitioner may avoid the preclusive effect of that

prohibition by invoking the “savings clause” in § 2255(e) which permits relief to be

sought under § 2241 if it “appears that the remedy by motion [under § 2255] is

inadequate or ineffective to test the legality of [the applicant’s] detention.” However, the

unavailability of relief under § 2255 because of a limitations or other bar does not

demonstrate that the § 2255 remedy is inadequate or ineffective. Wofford v. Scott,

177 F.3d 1236, 1244 (11 Cir. 1999). In Wofford, the Eleventh Circuit held that:

th

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

Case No: 1:10-cv-00230-MP -GRJ -3-
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. 

Id. Even when those narrow and stringent requirements are met so as to “open the

portal” to a § 2241 proceeding, the Petitioner must then demonstrate “actual

innocence.” Id. (citing Bousley v. United States, 523 U.S. 614, 623 (1998) (“It is

important to note in this regard that ‘actual innocence’ means factual innocence, not

mere legal insufficiency.”)).

Petitioner contends that he is entitled to seek habeas corpus relief from his

enhanced sentence under the authority of Gilbert v. United States, 609 F.3d 1159 (11th

Cir.), vacated on rehearing en banc, 625 F.3d 716 (11 Cir. 2010). In Gilbert, which is th

presently pending on en banc rehearing, the Eleventh Circuit granted habeas relief to a

defendant serving an Armed Career Criminal Act sentence based on a predicate

offense of carrying a concealed firearm, in light of authority holding that the offense is

not a “violent crime” under the ACCA. See Begay v. United States, 553 U.S. 137

(2008); United States v. Archer, 531 F.3d 1347 (11th Cir.2008). In this case, Defendant

was subject to enhanced sentencing due to prior controlled substance felony offenses. 

Thus, Gilbert is factually inapposite to Defendant’s case and regardless of the outcome

of Gilbert on en banc rehearing it would not afford Defendant any basis for habeas

corpus relief. 

To the extent that Petitioner contends he was sentenced in violation of Apprendi

v. New Jersey, 530 U.S. 466 (2000), that claim was raised and rejected on direct

appeal. See Smith, Case No. 5:00-cr-002, at 256. Moreover, Petitioner makes no

Case No: 1:10-cv-00230-MP -GRJ -4-
claim of actual innocence within the meaning of Wofford. See Doc. 5.

Because this Court lacks personal jurisdiction over Petitioner’s immediate

custodian, and it is clear from the amended petition that Petitioner does not satisfy the

requirements for proceeding under the § 2255 savings clause, it is respectfully

RECOMMENDED:

That the amended petition, Doc. 5, be DISMISSED for lack of jurisdiction. 

IN CHAMBERS this 4 day of March 2011. 

th

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of this report

and recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of proposed

factual findings and recommendations.

Case No: 1:10-cv-00230-MP -GRJ -5-