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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DANIEL K GARCIA,

Petitioner,

v. CASE NO. 1:11-cv-00031-MP-GRJ

KENNY ATKINSON,

Respondent.

_____________________________/

O R D E R

This matter is before the Court on Doc. 10, Report and Recommendation of the

Magistrate Judge, which recommends that Petitioner Daniel Garcia’s petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241, Doc. 1, be dismissed. Following its entry, Petitioner timely

objected to the Magistrate Judge’s Report and Recommendation. Pursuant to 28 U.S.C. §

636(b)(1)(C), this Court reviews objected-to portions of the Report and Recommendation de

novo.

In 1999, Petitioner was convicted and sentenced for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g), and for possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j). See United States v. Garcia, 1:98-cr-49-SPM, Doc. 68

(1/22/99). Because Petitioner had three prior “violent felony” convictions,1

 as defined in 18

U.S.C. § 924(e)(2)(B), at the time of his felon-in-possession conviction, he was subject to the

sentence enhancement provision of the Armed Career Criminal Act (“ACCA”), which mandates

a minimum 15-year prison term. 18 U.S.C. § 924(e)(1). Accordingly, the court sentenced

1

Petitioner had on three previous occasions been convicted of felony robbery. 

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Petitioner to a 327-month term for the felon-in-possession conviction, and to a concurrent 120-

month term for the stolen firearm conviction. On appeal, the Eleventh Circuit affirmed. Garcia,

1:98-cr-49-SPM, Doc. 107. Thereafter, Petitioner sought relief under 28 U.S.C. § 2255, arguing,

inter alia, that his counsel, in failing to object to the ACCA sentence enhancement, rendered

ineffective assistance. Petitioner’s motion was denied on the merits, and the Eleventh Circuit

subsequently denied a certificate of appealability. Id. at 119, 121, 139. Then, on October 8,

2010, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2241, again challenging his

enhanced sentence.2 3

 Doc. 1. 

2

In fact, the instant petition constitutes Petitioner’s third plea for habeas relief. On March

29, 2010, Petitioner filed the first of his two petitions pursuant 28 U.S.C. § 2241. Petitioner

properly filed his first § 2241 in his district of confinement, the Southern District of Florida, but

because the South District determined that his motion was, in substance, a motion pursuant to 28

U.S.C. § 2255, the motion was transferred to this Court pursuant to 28 U.S.C. § 1631. See

Garcia v. Atkinson, 1:10-cv-79-MP-AK. Because Petitioner clearly intended to pursue his

claims under § 2241, and not § 2255, it was this Court’s opinion that the South District erred in

re-characterizing the petition and transferring it out of the district of confinement. See Rumsfeld

v. Padilla, 542 U.S. 426, 443 (2003) (noting that “[t]he plain language of the habeas statute thus

confirms the general rule that for core habeas petitions challenging present physical

confinement, jurisdiction lies in only one district: the district of confinement.”); Garcia, 1:10-cv79-MP-AK, Doc. 12 (5/10/10). Notwithstanding, this Court addressed the petition on the merits

and concluded that Petitioner was not entitled to habeas relief under § 2241. Garcia, 1:10-cv79-MP-AK, Doc. 12 (5/10/10). The case was then dismissed. Id. 

3

The instant petition was also filed in the Southen District of Florida, where the court

once again re-characterized the filing as a § 2255 petition and transferred it to this Court. 

Petitioner objected, arguing that § 2241 was the only method available to him to have his

sentence reviewed. Notwithstanding, the Southern District determined that Petitioner was

attempting to circumvent the bar on successive § 2255 motions to vacate by styling his petition

as one arising under § 2241. In this regard, the court’s actions were improper. Just two years

ago, the Seventh Circuit explained that “a § 2241 petition should not be re-characterized as a 

§ 2255 motion because courts must respect a litigant’s decision to invoke a certain statute and

must resolve the case under that law.” Wyatt v. United States, 574 F.3d 455, 460 (7th Cir. 2009). 

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Under 28 U.S.C. § 2255(a), a prisoner in custody “may move the court which imposed

the sentence to vacate, set aside or correct the sentence.” But § 2255(h) bars second and

successive motions for habeas relief except in two narrow situations, neither of which apply in

this matter. See 28 U.S.C. § 2255(h)(1)-(2). Petitioner argues, however, that the present claim

for relief is proper because his petition was filed pursuant to § 2241. Section 2255(e), however,

provides that a § 2241 petition “shall not be entertained” if a prisoner has previously been denied

relief by § 2255 motion “unless it also appears that the remedy by [§ 2255] motion is inadequate

or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e). This exception,

known as the “savings clause,” is the focus of this petition.4

 

In Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011), the Eleventh Circuit, sitting

en banc, addressed this very issue, and asked whether “the savings clause . . . permits a federal

prisoner to challenge his sentence in a 28 U.S.C. § 2241 petition when he cannot raise that

challenge in a § 2255 motion because of the § 2255(h) bar against second and successive

motions.” Id. at 1295. The court’s answer was “no,” “at least where the sentence the prisoner is

attacking does not exceed the statutory maximum.” Id. This being so, because Petitioner’s

sentence does not exceed the statutory maximum–life in prison–the Magistrate Judge was correct

in finding that Petitioner was prohibited from seeking habeas relief by way of the § 2255(e)

savings clause with regard to his ACCA sentence enhancement. As such, the Magistrate Judge

correctly recommended that the instant petition be dismissed. 

4

Because Petitioner’s clear intent was to file his petition pursuant to § 2241, and because

jurisdiction for § 2241 petitions lie only in the district of confinement, Padilla, 542 U.S. 443,

the Magistrate Judge properly concluded that venue is improper in this Court. In addition, the

Magistrate Judge also correctly determined that while this Court could re-transfer this case back

to the district of confinement–the Southern District–in light of the Eleventh Circuit’s ruling in

Gilbert, 640 F.3d at 1295, doing so would be “futile.” Doc. 10. 

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In response to the Magistrate Judge’s Report and Recommendation, Petitioner has raised

four objections, none of which, however, have merit. 

Petitioner first argues that the Supreme Court’s decision in Shepard v. United States, 544

U.S. 13 (2005), and the Eleventh Circuit’s subsequent decision in United States v. Sneed, 600

F.3d 1326, show that the district court improperly applied the ACCA’s sentence enhancement. 

Accordingly, Petitioner further argues, because his sentence exceeds the statutory maximum,

under the Eleventh Circuit’s recent decision in Gilbert, 640 F.3d 1293, he is entitled to challenge

the terms of his sentence through the savings clause and a § 2241 petition. But he is wrong. 

Petitioner does not argue with the government’s contention that at the time of his felon-inpossession sentencing he had previously been convicted of three “violent felonies” as defined in

the ACCA. 18 U.S.C. § 924(e)(2)(B). But Petitioner does, however, dispute the conclusion that

the offenses underlying the convictions were “committed on occasions different from another,”

which the ACCA requires. 18 U.S.C. § 924(e)(1). More directly, Petitioner argues that the

government failed to prove, through proper methods, “that each of the three previous convictions

arose out of a separate and distinct criminal episode,” United States v. Pope, 132 F.3d 684, 689

(11th Cir. 1998) (internal quotations omitted), and that the district court improperly relied upon

police reports in reaching its conclusion that they in fact did. 

In 1990, the Supreme Court addressed how a court sentencing under the ACCA should

determine whether a defendant’s previous conviction constitutes a “violent felony” as defined in

the ACCA. Taylor v. United States, 495 U.S. 575, 602 (1990). The Court in Taylor found it

evident through the statute’s plain language and its legislative history that the ACCA “mandates

a formal categorical approach,” “generally requir[ing] the trial court to look only to the fact of

conviction and the statutory definition of the prior offense,” but “not to the facts underlying the

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prior convictions.” Id. at 600-02. In 2000, the Eleventh Circuit in United States v. Richardson,

230 F.3d 1297 (11th Cir. 2000), concluded however, that Taylor’s categorical approach was

required for the “violent felony” determination only and did not apply to a court’s determination

of whether a defendant’s previous convictions were “committed on different occasions from one

another.” 18 U.S.C. § 924(e)(1). The categorical approach applies to the “violent felony”

determination, the Richardson court explained, because “Congress intended the sentencing court

to look only to the fact that the defendant had been convicted of crimes falling within certain

categories and not to the facts underlying the prior convictions.” Richardson, 230 F.3d 1297

(quoting Taylor, 495 U.S. at 600). “In contrast, determining whether crimes were committed on

occasions different from one another requires looking at the facts underlying the prior

convictions.” Richardson, 230 F.3d at 1299. Accordingly, the Eleventh Circuit sustained the

district courts’ use of police reports, i.e, reviewing the “facts underlying the prior convictions,”

in determining whether a defendant’s previous convictions committed on different occasions. Id.

at 1300. 

Then, fifteen years after its decision in Taylor, the Supreme Court refined, and further

restricted, the categorical approach with regard to the “violent felony” determination. In

Shepard, the Supreme Court held that a court sentencing under the ACCA may not rely upon

police reports to determine the character of an underlying conviction, but is instead restricted to

“examining the statutory definition, charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Shepard, 544 U.S. at 16. It is this decision that brings us to the Eleventh Circuit’s

most recent decision in this area and the thrust of Petitioner’s argument. In Sneed, while

acknowledging that (as it was in Taylor) the Court’s decision in Shepard involved only the

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“violent felony” determination, and not the “different occasions” determination, the Eleventh

Circuit concluded that the Court’s decision in Shepard “had undermined Richardson’s approval

of the use of police reports for § 924(e)(1) inquiries to the point of abrogation.” Sneed, 600 F.3d

at 1332. The Sneed court further concluded that based on Shepard, “there is simply no

distinction left between the scope of permissible evidence that can be used to determine if the

prior convictions are violent felonies . . . or if they were committed on different occasions under

§ 924(e)(1).” Id. Accordingly, the Eleventh Circuit held that courts sentencing under the ACCA

may not review police reports to determine whether previous convictions were committed on

“occasions different from one another.” § 924(e)(1); Sneed, 600 F.3d at 1333. 

Petitioner argues that at his initial sentencing in 1999, the court relied upon non-Shepard

approved documents (police reports) in finding that he had three previous violent felony

convictions that were “committed on different occasions from one another,” § 924(e)(1), and that

in light of the Eleventh Circuit’s decision in Sneed, this constitutes reversible error. As such,

Petitioner contends that he was improperly sentenced under the ACCA; that the imposed 327-

month sentence for his felon-in-possession conviction thus exceeds the statutory maximum; and

that accordingly, under the court’s ruling in Gilbert, 640 F.3d at 1295, he is entitled to challenge

the terms of his sentence byway of the savings clause and a § 2241 petition. Because neither

Shepard nor Sneed are applied retroactively, however, Petitioner’s argument fails.

At the time of Petitioner’s sentencing, neither the Supreme Court nor the Eleventh Circuit

prohibited the examination of police reports by the district court when sentencing a defendant

under the ACCA. Today, under the guidance of the Court’s decision in Shepard, 544 U.S. at 16,

the Eleventh Circuit forbids the use of police reports for any ACCA determination. See Sneed

600 F.3d 1332-33. But because neither Shepard nor Sneed apply retroactively, they are of no

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help to Petitioner. The Eleventh Circuit has not yet decided a case involving retroactive

application of Shepard, but the First, Third, Fourth and Tenth Circuits have, and they have done

so uniformly, holding that Shepard does not apply retroactively because the Supreme Court did

not expressly so indicate. See United States v. Davis, 133 Fed.Appx. 916 (4th Cir. 2005); United

States v. Christensen, 456 F.3d 1205, 1207-08 (10th Cir. 2006); Corey v. United States, 221

Fed.Appx. 1 (1st Cir. 2007); United States v. Armstrong, 151 Fed.Appx. 155, 157 (3d Cir. 2005). 

While the position of other circuits are not binding upon this Court, they are indeed persuasive. 

When the sister circuits have taken a unanimous position, it is extremely persuasive and this

Court would diverge from that position only if there is a compelling reason to do so. In this

case, there is no such reason. Because the result in Sneed is a by-product of the Court’s decision

in Shepard–in that, Richardson would not have been abrogated, and replaced by Sneed, were it

not for the Court’s decision in Shepard–it, too, does not apply retroactively. The fruit of

Shepard cannot save Petitioner from unavailability of Shepard itself.

As such, because Petitioner was not improperly sentenced in 1999, and because the

subsequent decisions in Shepard and in Sneed do not apply retroactively, Petitioner’s sentence

does not exceed that statutory maximum, and thus, under Gilbert, 640 F.3d at 1295, Petitioner is

therefore precluded from challenging the terms of his sentence through the savings clause of 28

U.S.C. § 2255(e) and a § 2241 petition. Petitioner’s first argument is dismissed in whole. 

Second, in what is seemingly only a slight variation of his first objection, Petitioner

argues that a “circuit law busting decision” establishes “that he has been convicted of a

nonexistent crime,” Doc. 12. Despite this strong, and uniquely vague, contention, Petitioner

neither explains which “circuit law busting decision” now indicates that he has been convicted of

a crime that is no longer unlawful, nor distinguishes which of his prior convictions now

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constitutes a “nonexistent crime.” Because he haphazardly cites and quotes Gilbert, 640 F.3d

1293, Petitioner ostensibly relies upon it as the basis for his argument. Like in Gilbert, however,

Petitioner’s argument in this case in untenable. Petitioner argues that he has been convicted of a

“nonexistent crime,” but as the record shows, he has on three previous occasions been convicted

of felony robbery, which “as thousands of federal prisoners can attest,” does exist. Gilbert, 640

F.3d at 1320. Petitioner further argues that he “is innocent of the statutory ‘offense’ of being a

career offender.” Doc. 1. First, Petitioner’s sentence was not enhanced because he qualified as a

“career offender” under § 4B1.1 of the sentencing guidelines, but instead, his sentence was

enhanced because he qualified as a armed career criminal under 18 U.S.C. § 924(e)(1). Second,

“[p]ut in its best light, [Petitioner’s] argument assumes that he was convicted of the nonexistent

offense of being” an armed career criminal. Gilbert, 640 F.3d at 1320. But he was not. As the

Gilbert court explained:

A defendant who is convicted and then has the [ACCA] enhancement, or any other

[] enhancement, applied in the calculation of his sentence has not been convicted of

being guilty of the enhancement. If guidelines enhancements were crimes, they

would have to be charged in the indictment and proven to the jury beyond a

reasonable doubt.

Id. Petitioner’s argument “turns on treating sentences as convictions, and an argument

that depends on calling a duck a donkey is not much of an argument.” Id. 

Third, Petitioner argues that the savings clause in § 2255(e) is not limited to those

rare situations where a prisoner has been sentenced in excess of the statutory maximum. 

Not only does this Court disagree with Petitioner’s reading of statute, this Court is bound

by the decisions of the Eleventh Circuit Court of Appeals, which, sitting en banc, reached

the opposite conclusion. See Gilbert, 640 F.3d 1293, 1295. As such, this argument is

summarily dismissed. 

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Finally, Petitioner argues that the court’s decision in Gilbert, 640 F.3d 1293, does

not control in this case because while his sentence was enhanced pursuant to a federal

statute, the prisoner in Gilbert “had a true guideline sentence.” Apart from defining this

distinction, Petitioner has done nothing more to further this argument. Moreover, the

holding in Gilbert does not contemplate the manner in which the sentencing court arrived

at the term of imprisonment, but instead looks at the results alone: a prisoner whose

sentence does not exceed the statutory maximum may not use a habeas corpus petition to

challenge his sentence. 640 F.3d at 1295. 

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge, Doc. 10, is

ACCEPTED and incorporated herein.

2. Petition for writ of habeas corpus, Doc.1, is DENIED with prejudice.

DONE AND ORDERED this 8th day of September, 2011

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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