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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SCHEAREAN JEAN MEANS, 

Petitioner,

vs. Case No. 4:10cv447-MP/WCS

UNITED STATES OF AMERICA, 

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

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

pursuant to 28 U.S.C. § 2241 and attached memorandum. The two were filed

electronically as doc. 1 and doc. 1-1. She did not pay the filing fee or file a motion to

proceed in forma pauperis. For purposes of dismissal, however, leave to proceed in

forma pauperis is granted by separate order. 

Petitioner is incarcerated at the Federal Correctional Institution in Tallahassee.

This is Petitioner's fourth attempt in this district to challenge, by habeas corpus petition,

her conviction and sentence imposed in the Northern District of Alabama. See,

4:02cv385-RH/WCS, 4:05cv141-MP/WCS, and 4:08cv38-MP/WCS (hereafter
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referenced as 2002 case, 2005 case, and 2008 case, respectively). In each of those

cases, the § 2241 petition was dismissed under the "savings clause" of 28 U.S.C. §

2255,1 as interpreted in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999). See, 2002

case, docs. 3 , 6 and 7 (report and recommendation as adopted by the court and

judgment entered on the docket on February 6, 2003); 2005 case, docs. 4, 5 and 6

(report and recommendation as adopted by the court and judgment entered on the

docket on August 23, 2005); and 2008 case, docs. 5, 8, and 9 (report and

recommendation as adopted by the court and judgment entered on the docket on

November 17, 2008). Petitioner unsuccessfully appealed all the dismissals; and in one

case the Eleventh Circuit's order also discussed the savings clause and Wofford. 2005

case, doc. 8 (a copy was also attached to the report and recommendation in the 2008

case, doc. 5, pp. 6-11). 

Petitioner again seeks § 2241 relief from the Alabama judgment, claiming she is

actually innocent of the prior convictions used to enhance her sentence because as

they "did not meet the definition of the crime language." Doc. 1-1, p. 1. Petitioner

claims actual innocence pursuant to, and wants to take advantage of, the change in law

occasioned by, Gilbert v. United States, 609 F.3d 1159 (11th Cir.), Begay v. United

States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v.

Archer, 531 F.3d 1347 (11th Cir. 2008). Doc. 1-1, pp. 2-3. 

1

 A petition for writ of habeas corpus filed by a prisoner authorized to apply for §

2255 will not be granted absent a showing that the § 2255 remedy "is inadequate or

ineffective to test the legality of his detention." § 2255(e). 

Case No. 4:10cv447-MP/WCS
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In Begay, the Court interpreted the meaning of "violent felony" under the Armed

Career Criminal Act (ACCA). A "violent felony," for ACCA purposes, includes (inter alia)

a felony for, "burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to another." 18

U.S.C. § § 924(e)(2)(B)(ii) (emphasis added to "residual clause" language). In the

Supreme Court's view a felony satisfying only the residual clause (there, driving under

the influence) was not a violent felony under clause (ii), as the presence of examples

(burglary, arson, extortion, or involving the use of explosives), "indicates that the statute

covers only similar crimes, rather than every crime that 'presents a serious potential risk

of physical injury to another,' " and therefore limited the crimes covered by clause (ii). 

553 U.S. at 142-143, 128 S.Ct. 1584-85 (emphasis in original). 

In Archer, the Eleventh Circuit applied Begay to find that a prior conviction for

carrying a concealed weapon was not a qualifying "crime of violence" for purposes of

"career offender" sentencing under U.S.S.G. § 4B1.1.2 In Gilbert, the defendant had

been sentenced as a career offender, with one of the two prior qualifying convictions for

carrying a concealed firearm, which was no longer a qualifying offense under Begay

and Archer. 609 F.3d at 1160-62. It was conceded that Begay and Archer applied

retroactively, and the court found Gilbert innocent of the "offense" of being a career

offender (i.e., having two prior qualifying felonies) as he had been sentenced for the

2

 A person qualifies for sentencing as a career offender if, inter alia, he has at

least two prior felony convictions for a crime of violence or a controlled substance

offense. § 4B1.1(a). The Eleventh Circuit "has repeatedly read the definition of a

'violent felony' under § 924(e) of the Armed Career Criminal Act as 'virtually identical' to

the definition of a 'crime of violence' under U.S.S.G. § 4B1.2." Archer, 531 F.3d at

1352. As noted infra, n. 7, Petitioner had four prior drug felonies. 

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nonexistent offense of being a career offender with only one qualifying felony. Id., at

1165-66. The Wofford requirements were met as the claim was based on a

retroactively applicable Supreme Court decision, establishing defendant was convicted

of a nonexistent offense, that was foreclosed by circuit law when it could have been

raised at trial, on appeal, or by initial § 2255 motion. Id., at 1164-67. The Gilbert

opinion was vacated, however, and rehearing en banc granted on November 3, 2010. 

Gilbert v. United States, 625 F.3d 716 (11th Cir. 2010).3

 

But even assuming a similar opinion is issued on rehearing, there is no indication

(as discussed below) that Petitioner Means was deemed to have committed a "violent

felony" or "crime of violence." Cases interpreting those phrases do not apply. 

Petitioner claims the Government filed a notice of intent to seek enhanced

sentencing under 21 U.S.C. § 841(b)(1)(A), and she was sentenced to a mandatory

term of life imprisonment pursuant to 18 U.S.C. § 3559(c). Doc. 1-1, p. 3. She asserts

that the four offenses used to enhance her sentence did not qualify as serious drug

offenses under § 3559(c). Id., pp. 3-4, citing United States v. Sanchez, 586 F.3d 918

(11th Cir. 2009).4

Section 3559(c) provides in relevant part that a person "convicted in a court of

the United States of a serious violent felony shall be sentenced to life imprisonment if" it

that person has "2 or more serious violent felonies," or "one or more serious violent

3

 According to the Eleventh Circuit's docket in the Gilbert case, available in

PACER (Public Access to Electronic Records), argument is scheduled for February 15,

2011. 

4

 Defendant gives the case name as United States v. Camejo; Camejo was one

of the coconspirators. 

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felonies and one or more serious drug offenses." § 3559(c)(1)(A). The terms "serious

violent felony" and "serious drug offense" are defined in § 3559(c)(2)(F) and (H),

respectively. Sanchez involved sentencing under § 3559.5 Section 841(b)(1)(A),

alleged by Defendant to have been cited in the Government's notice of intent to seek an

enhanced sentence, provides enhanced penalties for a drug offense if committed "after

a prior conviction for a felony drug offense has become final." 

There is no indication whatsoever in this case that Defendant was convicted in

federal court of "a serious violent felony" subject to enhancement under § 3559(c). 

According to the judgment, she was convicted of conspiracy to possess with intent to

distribute controlled substances (count 2), possession with intent to distribute cocaine,

crack cocaine, and marijuana (count 11), and use of a communication facility to commit,

cause, or facilitate commission of a drug felony (counts 33, 34, 42, 61, and 67), in

violation of 21 U.S.C. § § 846, 841(b)(1)(A), 841(a)(1), and 843(b), respectively. Doc.

722 in case number 2:95cr129-JHH-TMP, Northern District of Alabama, Southern

Division6

 (hereafter Alabama case). She was sentenced to concurrent life terms on

counts 2 and 11, and concurrent terms of four years on each remaining count. 

5

 In the case cited by Petitioner, Defendants Sanchez and Camejo were

convicted of (inter alia) two offenses under the Hobbs Act: conspiracy to take marijuana

forcibly from a person believed to be engaged in drug trafficking (count 4), and

attempting forcibly to take the marijuana (count 5). 586 F.3d at 921, n. 3. They were

sentenced to life imprisonment on those two counts pursuant to the "three-strikes law,"

§ 3559(c), and only the life sentences on those counts were vacated. Id., at 926, 936. 

As set forth ahead, § 3559 was not the basis for this Petitioner's life sentence.

6

 The docket and certain documents (such as the judgment) are available in

PACER (Public Access to Electronic Records). 

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Under § 841(b)(1)(A), for offenses involving certain quantities of controlled

substances (including cocaine, cocaine base, or marijuana),7 the sentence is 10 years

to life; if the offense is committed "after a prior conviction for a felony drug offense has

become final," the sentence is 20 years to life; if committed "after two or more prior

convictions for a felony drug offense have become final," then the sentence is a

mandatory term of life. Clearly this – rather than § 3559 – was the basis for Petitioner's

life sentence. Indeed, the sentencing court later denied Petitioner's 18 U.S.C. §

3582(c)(2) motion for reduction of sentence, noting, "[t]he defendant was sentenced to a

term of LIFE, 21 U.S.C. § 846, 841(b)(1)(A), the minimum statutory penalty in counts 2

& 11." Alabama case, doc. 1675.8

 

Petitioner's sentence was enhanced for having at least two prior convictions for a

felony drug offense. The arguments raised and cases cited are inapposite. Petitioner

has not satisfied the savings clause and may not proceed in this court by petition for writ

of habeas corpus. 

7

 Petitioner already challenged, on direct appeal, § 2255 motion, or both,

determinations made regarding the kinds and quantities of drugs involved for

sentencing purposes. See 2002 case, doc. 1, Ex. A (pp. 16-42 in ECF) (electronic case

filing). This is a copy of the memorandum opinion and order entered July 2, 2002, in the

Alabama case, denying Petitioner's § 2255 motion and other motions. According to the

docket in the Alabama case, it is doc. 1308 in that case; however the document itself is

unavailable in PACER. A review of that order reveals no prior convictions other than

four prior felony drug convictions. 2002 case, doc. 1, Ex. A, pp. 5-6, 19-20 (pp. 20-21,

34-35 in ECF). Arguments were made as to career offender sentencing, but the court

concluded any objection would not have mattered due to the mandatory life term under

841(b)(1)(A). Id., pp. 5, 7, 21 (pp. 20, 22, 36 in ECF).

8 See also doc. 1791, available in PACER, discussing the history in that case

from Defendant's conviction, § 2255 motion, and various other motions seeking

postconviction relief.

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It is therefore respectfully RECOMMENDED that the § 2241 petition be

SUMMARILY DISMISSED WITH PREJUDICE.

IN CHAMBERS at Tallahassee, Florida, on January 31, 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. 4:10cv447-MP/WCS