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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CATHERINE TERRACIA TONEY, 

Petitioner,

vs. Case No. 4:10cv510-WS/WCS

UNITED STATES OF AMERICA,

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241 and supporting memorandum. Docs. 1 and 2. The filing fee was

paid. 

Petitioner challenges her sentence imposed in the Southern District of Alabama.

Doc. 1, p. 2. She filed a 28 U.S.C. § 2255 motion in that court, and the motion was

denied. Id.

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A challenge to a sentence is cognizable by motion filed pursuant to 28 U.S.C. §

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

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 she is actually innocent of being a career offender under the

United States Sentencing Guidelines, citing 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) (other citations omitted). Doc. 1, p. 3; doc. 2, pp. 2-4. The Gilbert opinion

cited by Petitioner was vacated and rehearing en banc was granted. Gilbert v. United

States, 625 F.3d 716 (11th Cir. 2010). On rehearing, the Eleventh Circuit said, "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

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maximum." Gilbert v. United States, F.3d , 2011 WL 1885674, at *29 (11th Cir.

May 19, 2011). 

The Eleventh Circuit rejected the argument that Gilbert was convicted of (and

therefore could be actually innocent of) being a career offender:

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. . . . Gilbert's position turns on treating sentences as

convictions, and an argument that depends on calling a duck a donkey is

not much of an argument..

Id., at *25. The court also rejected application of the actual innocence of sentence

exception applicable to death cases, holding that it "does not apply to claims that the

guidelines were misinterpreted to produce a higher guidelines range than would

otherwise have applied." Id., at *25-*28. 

In the petition itself Petitioner claims actual innocence of career offender status,

alleging, "[t]he priors relied upon were not serious as they were for possession charges

and specifically not for 5 kilograms / 50 grams of cocaine or crack, therefore, they did

not meet the definition of the crime language." Doc. 1, p. 3 (emphasis added). 

In the memorandum of law, Petitioner asserts that state drug offenses qualify as

"serious drug offense[s]" under 18 U.S.C. § 3559(c) only in certain circumstances,

including that the prior offenses were punishable under § 841(b)(1)(A) for involving at

least five kilograms of cocaine or at least 50 grams of cocaine base. Doc. 2, p. 2. She

asserts that she was sentenced to "240 months pursuant to U.S.S.G. § 4A1.1 and §

4A1.2, similar to a career offender," and that she "is not guilty of being a career offender

under U.S.S.G. § 4B1.1 and § 4B1.2 because the three prior Alabama convictions were

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for possession of amounts of drugs that did not trigger being punished under 21 U.S.C.

§ 841(b)(1)(A)" because the amounts involved in the prior offenses "were all far, far less

than five (5) kilograms of cocaine." Id., pp. 3, 4. 

Petitioner seems to be confusing the amounts of a controlled substance required

for the federal conviction and sentence with what had to be proven as to her prior state

convictions for federal sentencing purposes. 

According to the record in her criminal case, Petitioner entered a plea to

conspiracy under 21 U.S.C. § 846 to possess with intent to distribute crack cocaine, and

though the sentencing guidelines called for a lower sentence, Petitioner was sentenced

to the statutory minimum mandatory sentence. Doc. 54 in 1:03cr77-CB-D, S. D.

Alabama (order denying § 2255 motion). Petitioner entered a plea agreement, and

agreed that the Government could prove, beyond a reasonable doubt, her involvement

with 132.3 grams of crack cocaine. Doc. 26 in that case (factual resume attached to

plea agreement). She concedes to three prior drug offenses here. Under §

841(b)(1)(A) at the time of Petitioner's offense and sentencing,1

 since her offense

involved 50 grams or more of a substance containing cocaine base and was committed

"after a prior conviction for a felony drug offense has become final," her minimum

1

 It is noted that the Fair Sentencing Act of 2010 (FSA) "amends the sentencing

provisions in 21 U.S.C. § 841(b)(1) by raising from 50 grams to 280 grams the amount

of crack 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." United States v.

Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), cert. denied, 131 S.Ct. 1833 (2011)

(citation omitted). The FSA does not apply retroactively, however, to crimes committed

before its enactment. Id., citing 1 U.S.C. § 109.

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possible sentence was twenty years.2 The sentencing guidelines apparently had

nothing to do with Petitioner's twenty year sentence, nor did § 3559(c).3

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

Petitioner's sentence imposed in the Southern District of Alabama, be SUMMARILY

DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on June 8, 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.

2

 If committed "after two or more prior convictions for a felony drug offense have

become final, such person shall be sentenced to a mandatory term of life imprisonment

without release . . . ." § 841(b)(1)(A). 

3

 This statute, known as a "three strikes" law, "mandates a sentence of life

imprisonment for a defendant who has been convicted of a 'serious violent felony,' if he

previously was convicted of 'one or more serious violent felonies and one or more

serious drug offenses.'" United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.

2004), cert. denied, 546 U.S. 934 (2005), citing 18 U.S.C. § 3559(c)(1)(A)(ii) (other

citation omitted). Petitioner's conviction was for a crack cocaine conspiracy, not a

violent felony. 

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