Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JIMMIE LOU HENRIXSON, 

Petitioner,

vs. Case No. 4:10cv382-RH/WCS

UNITED STATES OF AMERICA,

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241

and supporting memorandum. Docs. 1 and 2. Petitioner was directed to show cause

why her petition, challenging a conviction and sentence imposed in the Northern District

of Georgia, should not be dismissed under the savings clause of 28 U.S.C. § 2255(e). 

Doc. 6 (incorporated herein by reference). 

As previously explained, to proceed under the savings clause Petitioner would

have to show that the § 2255 remedy was inadequate or ineffective to test the legality of

detention. Id., pp. 1-2, quoting § 2255(e). Petitioner claimed § 2255 was inadequate

Case 4:10-cv-00382-RH-WCS Document 9 Filed 07/12/11 Page 1 of 5
Page 2 of 5

and ineffective, and argued she was actually innocent of her life sentence imposed

pursuant to 18 U.S.C. § 3559(c), based on the cases of Begay v. United States, 553

U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and Gilbert v. United States, 609

F.3d 1159 (11th Cir. 2010). Doc. 6, p. 2. 

As Gilbert was vacated after the § 2241 petition was filed, and an opinion had

recently issued on rehearing en banc, I noted that summary dismissal of the petition

seemed appropriate, but gave Petitioner the opportunity to respond. Id., pp. 2-3. 

Petitioner submitted a letter in response to the order, asking for additional time to

file a response. Doc. 7. It was docketed as a response to order rather than request for

additional time, and was not referred for a ruling1. Petitioner then filed a "show cause

brief" responding to the order. Doc. 8. 

In the letter request, Petitioner sought an additional 30 days based in part on her

age and medical condition. Doc. 7, p. 1. She also indicated that "[t]he court is

supposed to rule on the retroactivity of the 'crack cocaine' law and I feel I will have a

better chance for relief if I don't try to rush things." Doc. 7, p. 1. Liberally construed this

is potentially a separate claim for relief and addressed first. 

Presumably Petitioner's reference to the crack cocaine law is to the Fair

Sentencing Act of 2010 (FSA). 

The FSA, signed into law on August 3, 2010, changes to the crack-topowder ratios from 100:1 to about 18:1. See Pub. L. No 111-220, 124

Stat. 2372. The Act amends the sentencing provisions in 21 U.S.C. §

841(b)(1) by raising from 50 grams to 280 grams the amount of crack

1

 "The motion is in another envelope" was written at the bottom of the last page,

near Petitioner's signature, but a separate motion was never received. 

Case No. 4:10cv382-RH/WCS

Case 4:10-cv-00382-RH-WCS Document 9 Filed 07/12/11 Page 2 of 5
Page 3 of 5

necessary to trigger the 10-year mandatory minimum sentence, and

raising the amount from 5 to 28 grams necessary to trigger the 5-year

minimum. Id. § 2(a)(1)-(2). 

United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), cert. denied, 131 S.Ct.

1833 (2011). 

The Eleventh Circuit has recently determined that the FSA applies to defendants

who committed crack cocaine offenses before its enactment (on August 3, 2010), who

are sentenced after its enactment. United States v. Vera Rojas, F.3d , 2011 WL

2623579 (11th Cir. July 6, 2011). But Petitioner Hendrixson was not sentenced after

the effective date of the FSA.2

 And in Rojas, the court agreed with other circuits that,

"absent further legislative action directing otherwise, the general savings statute [1

U.S.C. § 109] prevents a defendant who was sentenced prior to the enactment of the

FSA from benefitting from retroactive application." Id., at *3. 

In addition to changing the statutory penalties, the FSA also directed the United

States Sentencing Commission to review and amend the Sentencing Guidelines to

conform with the FSA. Pub. L. No 111-220, 124 Stat. 2372, §§ 5-8. The Commission

recently voted to apply the guidelines amendment retroactively. See

http://www.ussc.gov/Legislative_and_Public_Affairs/, press release of June 30, 2011. 

2

 The court in Rojas rejected an argument based on Gomes, noting "Gomes does

not apply here. The record reveals that Gomes was indicted in July 2009 and

sentenced in March 2010 – nearly five months before the FSA was signed into law. The

issue before the Court therefore was whether the FSA applied retroactively to lighten

the defendant's existing sentence." Id., at *2 (emphasis in original). Gomes would bar

relief to Petitioner, sentenced years before enactment of the FSA. The judgment was

affirmed in 2000. United States v. Hendrixson, 234 F.3d 494, 495 and n. 1 (11th Cir.

2000), rehg. en banc denied, 252 F.3d 1364 (11th Cir. 2001). 

Case No. 4:10cv382-RH/WCS

Case 4:10-cv-00382-RH-WCS Document 9 Filed 07/12/11 Page 3 of 5
Page 4 of 5

The permanent amendment implementing the FSA and the retroactivity provision will be

effective November 1, 2011, absent contrary action by Congress. 

Assuming a retroactive guidelines amendment is effective on that date, however,

the Sentencing Commission cannot not make the statutory changes of the FSA

retroactive. In the event that there is a retroactive amendment to the sentencing

guidelines which lowers Petitioner's term of imprisonment, Petitioner would seek relief

by filing a motion for modification of sentence with the sentencing court. 18 U.S.C. §

3582(c)(2). 

As for Petitioner's original § 2241 claim, she has not demonstrated that § 2255 is

inadequate or ineffective to test the legality of her detention. In response to the show

cause order, she claims that the Gilbert opinion she originally cited – the one which was

vacated and has been replaced by the opinion issued on rehearing en banc – controls

here because it was the law at the time she filed the petition. Doc. 8, p. 1, citing Cargill

v. Turpin, 120 F.3d 1366 (11th Cir. 1997) and United States v. Hutchinson, 75 F.3d 626

(11th Cir. 1996). Cargill noted "[t]he law of this circuit is 'emphatic' that only the

Supreme Court or this court sitting en banc can judicially overrule a prior panel

decision." 120 F.3d at 1386 (citation omitted). Hutchinson also noted the firmly

established rule that one panel of the court could not revisit or overrule the holding of

another panel unless and until that holding was overruled en banc, or by the Supreme

Court. 75 F.3d at 626 (citation omitted). That the court of appeals is bound by circuit

precedent unless it is overruled does not support the argument that an overruled

opinion applies to any pleading which happens to be filed before the case is overruled. 

Case No. 4:10cv382-RH/WCS

Case 4:10-cv-00382-RH-WCS Document 9 Filed 07/12/11 Page 4 of 5
Page 5 of 5

For the reasons set forth above and in the order to show cause (doc. 6),

Petitioner is not entitled to habeas corpus relief 

It is therefore respectfully RECOMMENDED that the § 2241 petition, challenging

Petitioner's sentence imposed in the Northern District of Georgia, be SUMMARILY

DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on July 12, 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.

Case No. 4:10cv382-RH/WCS

Case 4:10-cv-00382-RH-WCS Document 9 Filed 07/12/11 Page 5 of 5