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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANGELA DENISE KILGORE, 

Petitioner,

vs. Case No. 4:10cv407-MP/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. Doc. 1. The filing fee was paid. 

Petitioner challenges the sentence imposed by the Eastern District of

Tennessee. Doc. 1, p. 2. Petitioner filed a 28 U.S.C. § 2255 motion in the sentencing

court, and the motion was denied. Id. Her second or successive motion was dismissed

for want of prosecution. Id., p. 3. 

Here, Petitioner asserts that she was wrongfully sentenced, as Congress did not

authorize separate penalties under 18 U.S.C. § 2113(d) and 18 U.S.C. § 924(c), relying

on United States v. Almany, 598 F.3d 238 (6th Cir. 2010). That opinion was vacated

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and remanded for further consideration in light of Abbott v. United States, 562 U.S. ----,

131 S.Ct. 18, 178 L.Ed.2d 348 (2010), and the consecutive sentence under § 924(c)

was restored on remand. United States v. Almany, 131 S.Ct. 637, 178 L.Ed.2d 471

(2010); United States v. Almany, 626 F.3d 901 (6th Cir. 2010).

 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). The

Eleventh Circuit has said, "that the 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." Wofford v. Scott, 177 F.3d 1236, 1245

(11th Cir.1999); see also Gilbert v. United States, F.3d , 2011 WL 1885674, at *24

(11th Cir. May 19, 2011) (noting that the actual holding of Wofford, "is simply that the

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

proceedings."). 

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Petitioner relies on circuit precedent, which has been overturned by the Supreme

Court. On the section of the § 2241 form for explaining why the § 2255 remedy is

inadequate or ineffective, Petitioner simply states that her second or successive motion

was dismissed for want of prosecution. She is not entitled to proceed under the savings

clause. 

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

Petitioner's sentence imposed in the Eastern District of Tennessee, be SUMMARILY

DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on May 26, 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. 4:10cv407-MP/WCS

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