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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TIMOTHY KELLEY,1

Petitioner,

vs. Case No. 4:10cv464-MP/WCS

STATE OF FLORIDA, 

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

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

2241. Doc. 1. He paid the filing fee. 

Petitioner claims he is in custody for habeas corpus purposes due to expired

state convictions used to enhance his current federal sentence. Doc. 1, p. 2. Petitioner

cites Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), Custis v.

United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), and Daniels v.

United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001). Id.

1

 Petitioner's last name was misspelled as Kelly in the style of the petition. The

clerk has corrected the spelling on the docket. 
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Petitioner claims that, as in Maleng, this petition should be construed as

challenging his current sentence as enhanced by invalid prior convictions. Id., pp. 2-3.2

Petitioner claims his petition is filed pursuant to § 2241 rather than § 2254, as § 2241

requires a petitioner to be in custody pursuant to a state court judgment, and he is not. 

Id., pp. 3-4. Petitioner contends that since § 2254 does not apply, the one year

limitations period and exhaustion requirements of § 2254 do not apply. Id., pp. 4-5. 

Petitioner challenges his state court nolo contendere pleas. Apparently the two

state court cases at issue are 1996CF117 and 2001CF657, as Petitioner has supplied a

copy of the state court's order denying his Fla.R.Crim.P. 3.850 motion as to those two

cases. Doc. 1, attachment (pp. 12-13 in ECF) (Electronic Case Filing). 

In case number 1996CF117, on July 17, 1996, Defendant pled no contest

to possession of cocaine and was sentenced to two years of probation,

which Defendant violated twice. He was eventually sentenced to 11

months and 29 days in the Leon County Jail on [September] 19, 1997. In

case number 2001CF657, on [December] 3, 2002, Defendant pled no

contest to sale of cocaine and was sentenced to three years of probation. 

After violating probation, on March 12, 2003, Defendant's probation was

reinstated to include 30 days in the Leon County Jail. An appeal was not

taken in either case. 

Id., p. 12 (state court order dated August 30, 2010). 

2

 In Maleng, the habeas petitioner had been convicted in state court in

Washington in 1958, and the expired 1958 conviction was used to increase the

mandatory minimum term on his 1978 Washington sentence. Id., at 489, 109 S.Ct. at

1924. In 1985 he was in federal custody, and had not yet begun to serve the 1978

sentences. Id., at 489-490, 109 S.Ct. at 1924-25. The Supreme Court said he was not

"in custody" of the 1958 sentence, but was "in custody" of the 1978 sentences he had

not yet started to serve. Id. Liberally construing the pro se petition, it was read as

asserting a challenge to the 1978 sentences as enhanced by the expired convictions,

and he was therefore "in custody" for habeas corpus purposes. Id., at 493-494, 109

S.Ct. at 1926-27. 

Case No. 4:10cv464-MP/WCS
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As he does here, in state court Petitioner challenged the pleas because they

were used to enhance his federal sentence. Id. The state court found the motion was

untimely under the two year time limit of Rule 3.850, and rejected Petitioner's claim that

his federal indictment and sentencing constituted newly discovered evidence. Id., pp.

12-13. The court also found the claim was without merit, as counsel has no duty to

advise of the possible consequences a plea may have at a future sentencing for a future

crime. Id., pp. 13 (citations omitted). 

Petitioner claims that "[a]ttorneys in both cases" advised him to enter a nolo

contendere plea, advised him that a plea of nolo contendere is not an admission of guilt,

and that "the plea and evidence based upon the plea could not be used against the

petitioner in any other criminal or civil proceeding." Id., p. 6-7. He asserts that he was

not guilty of these offenses and would have insisted on going to trial if he had known his

pleas could ever be used against him. Id., p. 7. Petitioner alleges that no amount of

diligence would have discovered that the pleas of nolo contendere could be used

against him until the federal indictment was returned. Id., pp. 7-8. 

Petitioner states under penalty of perjury that when he entered the pleas he was

advised that the plea was not an admission and could not be used against him in any

criminal or civil proceedings. Doc. 1, attachment (p. 11 in ECF). Petitioner states he

never admitted to committing and did not commit the offenses to which he entered the

nolo contendere pleas, and he was ready to go to trial in both cases. Id. 

Under Maleng, Petitioner is not "in custody" of either of the expired Florida

convictions. He is challenging those judgments as used to enhance his current federal

sentence, so his claim should proceed, if at all, by 28 U.S.C. § 2255 motion filed in the

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criminal case. See Daniels, 532 U.S. at 376, 382, 121 S.Ct. at 1580, 1583 ("[t]here may

be rare circumstances in which § 2255 would be available" to challenge prior

convictions relied on at federal sentencing; a defendant could challenge a prior

conviction obtained in violation of the right to counsel in a § 2255 motion but generally

only if he raised the issue at sentencing);3

 McCarthy v. United States, 320 F.3d 1230,

1231, n. 1 (11th Cir. 2003) (petition challenging state convictions used to enhance

federal sentence had to be brought by § 2255 motion, not § 2254 petition, collecting

cases). 

Petitioner filed a § 2255 motion in his criminal case, which remains pending. 

Doc. 28 in case number 4:08cr32-RH. Petitioner placed that motion in the prison mail

system on August 18, 2010, shortly before the state court denied Rule 3.850 relief on

August 30, 2010, which was well before Petitioner signed his § 2241 petition on October

15, 2010. The Government was directed to file a response to the § 2255 motion, and

Petitioner was given the opportunity to file a reply if he wished to do so. Doc. 31. The

Government filed a response, doc. 32, but Petitioner did not file a reply. 

As ground one in the § 2255 motion, Petitioner claimed that his attorney failed to

file a notice of appeal and failed to consult with him about filing an appeal. Doc. 28, p. 5

3

 Daniels was initiated by the filing of a § 2255 motion. As Petitioner is in custody

and "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," he "may move

the court which imposed the sentence to vacate, set aside, or correct the sentence." 28

U.S.C. § 2255(a). 

Case No. 4:10cv464-MP/WCS
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(p. 4 in ECF). Petitioner "reserved" ground two, "pending the resolution of prior

convictions being challenged in state court." Doc. 28, p. 6 (p. 5 in ECF). 

The Government responded to the § 2255 motion by arguing it is untimely under

the one year limitations period applicable to § 2255 motions, and asserting that the

claim (ground one) is without merit. Doc. 32, pp. 19-25. The Government did not

address ground two. 

It is not clear why Petitioner elected to file a § 2255 motion and a separate §

2241 petition, both challenging the judgment in his federal case, but it is improper. First,

a § 2255 motion must, inter alia, specify "all the grounds for relief available to the

moving party" and "state the facts supporting each ground." § 2255 Rule 2(b)(1) and

(2). See Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 2570, 162 L.Ed.2d 582

(2005) (discussing § 2254 Rule 2(c) – almost identical to § 2255 Rule 2(b) – which has

a higher pleading standard than Fed.R.Civ.P. 15). All available grounds must be raised

because once § 2255 relief is denied, a second or successive § 2255 motion may only

be filed on authorization of the court of appeals in limited circumstances. § 2255(h)

(referencing § 2244); § 2244(b). If Petitioner wanted to add his present claim to the

pending § 2255 motion (or provide allegations of fact to support his "reserved" ground

two), the proper procedure would be to file a motion to amend pursuant to Fed.R.Civ.P.

15. Mayle, 545 U.S. at 655, 125 S.Ct. at 2569, 162 L.Ed.2d 582 (2005) (noting that

Rule 15 is applicable in § 2254 cases). 

Moreover, Petitioner may not raise what is essentially a § 2255 claim by a

habeas corpus petition. A person authorized to seek § 2255 relief may not obtain

habeas corpus relief absent a showing that § 2255 "is inadequate or ineffective to test

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the legality of his detention." § 2255(e). This "savings clause" language allows a

habeas corpus petition to proceed only for a claim based upon a retroactively applicable

Supreme Court decision establishing that the petitioner was convicted for a nonexistent

defense, and circuit law had squarely foreclosed such a claim at the time it otherwise

should have been raised at trial, appeal, or first § 2255 motion. Wofford v. Scott, 177

F.3d 1236, 1244 (11th Cir. Jun 14, 1999). (footnote omitted). Petitioner cannot satisfy

any of these requirements. 

Petitioner is free to file a motion to amend his § 2255 motion accompanied by a

copy of the proposed amended pleading in its entirety, incorporating all amendments

and claims. Local Rule 15.1. If a motion to amend is filed, the Government would have

the opportunity to oppose the motion to amend, and (if the motion was granted) have

the opportunity to respond to the amended motion. 

It appears, however, that amendment would be futile. Petitioner has not obtained

relief from the convictions in state court,4

 and does not contend that they were obtained

in violation of his right to appointed counsel. 

If . . . a prior conviction used to enhance a federal sentence is no longer

open to direct or collateral attack in its own right because the defendant

failed to pursue those remedies while they were available (or because the

4

 Daniels said that if a successful challenge were made in state court, the

defendant could apply for reopening of his federal sentence, but "express[ed] no opinion

on the appropriate disposition of such an application." 532 U.S. at 382, 121 S.Ct. at

1583 (citation omitted). In Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161

L.Ed.2d 542 (2005), the Court said the one year period for filing a § 2255 motion on the

ground that a state sentence was vacated, "begins when a petitioner receives notice of

the order vacating the prior conviction, provided that he has sought it with due diligence

in state court, after entry of judgment in the federal case with the enhanced sentence." 

Id., at 298, 125 S.Ct. at 1575. Since Petitioner's state convictions were not vacated, the

state court order did not restart the one year period for filing a § 2255 motion.

Case No. 4:10cv464-MP/WCS
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defendant did so unsuccessfully), then that defendant is without recourse.

The presumption of validity that attached to the prior conviction at the time

of sentencing is conclusive, and the defendant may not collaterally attack

his prior conviction through a motion under § 2255. A defendant may

challenge a prior conviction as the product of a Gideon violation [5] in a §

2255 motion, but generally only if he raised that claim at his federal

sentencing proceeding.

532 U.S. at 382, 121 S.Ct. at 1583 (citations omitted); 320 F.3d at 1232 (quoting

Daniels). However, regardless of the disposition of this claim if raised in the § 2255

proceeding, Petitioner may not proceed in the case at bar under § 2241. 

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

Petitioner's Leon County convictions as used to enhance his federal sentence in

4:08cr32-RH, Florida, be SUMMARILY DISMISSED. The clerk shall forward a copy of

this report and recommendation to the United States Attorney for this district. 

IN CHAMBERS at Tallahassee, Florida, on March 23, 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.

5

 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (the

right to counsel includes the right to appointment of counsel for indigent defendants).

Case No. 4:10cv464-MP/WCS