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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION

CLORETHA PEAK,

 Petitioner, 

v. Case No. 4:11cv312/MP/CJK 

 

WILLIAM T. TAYLOR,

 Respondent.

__________________________/

REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C.

§ 2241 and accompanying memorandum. (Docs. 1 & 2). The case was reassigned

to this magistrate judge on April 21, 2014. (Doc. 20). The matter is now referred to

the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 and N.D.

Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that

petitioner has not demonstrated entitlement to proceed under § 2241, and that this

action should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a federal inmate confined at the Federal Correctional Institution in

Tallahassee, Florida, is currently serving a sentence imposed by the United States

District Court for the Middle District of Florida (“Middle District”) in United States

v. Taylor, et al., Case Number 6:95cr179. (Doc. 12-1, p. 3). Petitioner was found

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guilty by a jury of one count conspiracy to commit carjacking, to use and carry a

firearm during and in relation to a crime of violence, to obstruct commerce by

robbery, to transport stolen goods in interstate commerce, and to possess with intent

to distribute cocaine (Count One); carjacking resulting in death (Count Six); use of

a firearm during a crime of violence (Count Seven); obstruction of commerce by

robbery (Count Eight); use of a firearm during a crime of violence (Count Nine); and

interstate transportation of stolen goods (Count Thirteen). (Doc. 12-1, p. 59).

Petitioner’s conviction was affirmed on appeal. (Doc. 12-1, pp. 66-69). Petitioner

filed a motion to vacate her conviction pursuant to 28 U.S.C. § 2255, which was

denied. (Doc. 12-1, pp. 72-95). Petitioner subsequently filed an additional motion

to vacate under 28 U.S.C. § 2255. (Middle District Case Number 6:95cr179, docs.

260, 365). The Middle District dismissed that motion because it was a second or

successive § 2255 motion and petitioner had not obtained authorization from the

Eleventh Circuit to file such a motion. (Doc. 12-1, pp. 129-130). 

In this habeas action, petitioner challenges her original conviction and

sentence, alleging that she is “actually innocent.” (Doc. 2, p. 1). Specifically,

petitioner argues that she is being “illegally detained” and that two recent Supreme

Court decisions “demonstrate nonexistent offense/actual innocence.” Petitioner

further claims that § 2255 is inadequate or ineffective “to test the legality of [her]

detention,” and that the § 2255(h) savings clause applies to her case. (Doc. 2). As

relief, petitioner seeks immediate release from prison. (Doc. 2-1, p. 12). 

DISCUSSION

The execution or carrying out of an initially valid confinement is generally the

sole issue in a § 2241 action, as attacks on the validity of a conviction or sentence

must be asserted on direct appeal or under 28 U.S.C. § 2255. See United States v.

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Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232 (1952); Darby v. Hawk-Sawyer,

405 F.3d 942, 944 (11th Cir. 2005) (“Typically, collateral attacks on the validity of

a federal sentence must be brought under § 2255.”); Broussard v. Lippman, 643 F.2d

1131 (5th Cir. Unit A Apr. 27, 1981) (“Attacks on the underlying validity of a

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conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241(c).”).

Direct review of a federal conviction and sentence may be sought by filing a notice

of appeal in the underlying criminal case. A collateral attack on the validity of a

federal conviction or sentence is brought by filing a motion under 28 U.S.C. § 2255

in the court which imposed the sentence. Darby, 405 F.3d at 944. Section 2255

authorizes the filing of a motion to vacate, set aside, or correct a federal sentence

“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.” 28 U.S.C. § 2255(a). 

Section 2255(e) bars a § 2241 petition if the prisoner has failed to seek or has

already been denied relief on a § 2255 motion, “unlessit also appearsthat the remedy

by [§ 2255] motion is inadequate or ineffective to test the legality of his detention.”

28 U.S.C. § 2255(e); see also Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348,

1352 n.1 (11th Cir. 2008) (“[A] § 2255 motion is the exclusive remedy for a federal

prisoner to collaterally attack his conviction and sentence, except in the rare cases

where it isinadequate to do so.”). The narrow exception to the § 2255(e) bar is called

the “savings clause.” Gilbert v. United States, 640 F.3d 1293, 1305-06 (11th Cir.

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh 1

Circuit adopted as binding precedent all former Fifth Circuit decisions rendered before October 1,

1981.

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2011) (en banc), cert. denied, — U.S. — , 132 S. Ct. 1001, 181 L. Ed.2 d 743 (2012). 

“The burden of demonstrating the inadequacy orineffectiveness ofthe § 2255 remedy

rests squarely on the petitioner.” Turner v. Warden Coleman FCI (Medium), 709

F.3d 1328, 1333 (11th Cir. 2013) (citing McGhee v. Hanberry, 604 F.2d 9, 10 (5th

Cir. 1979)). The Eleventh Circuit originally advanced a three-part test for use to

determine whether § 2255 is inadequate or ineffective to test the legality of a

prisoner’s detention under the savings clause in Wofford v. Scott, 177 F.3d 1236,

1244 (11th Cir. 1999), but later classified the Wofford test as dicta. Turner, 709 F.3d

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at 1333. Instead, the Eleventh Circuit determined that the actual holding of Wofford

was “simply that the savings clause does not cover sentence claims that could have

been raised in earlier proceedings,” Gilbert, 640 F.3d at 1319, and further clarified

that Wofford required a petitioner to satisfy two conditions in order to bring a claim

under the savings clause: “[f]irst, the claim must be based upon a retroactively

applicable Supreme Court decision . . . . [S]econd . . . the Supreme Court decision

must have overturned a circuit precedent that squarely resolved the claim so that the

petitioner had no genuine opportunity to raise it at trial, on appeal, or in his first §

2255 motion.” Williams v. Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1343

(11th Cir. 2013); see also Johnson v. Warden, No. 13-10741, 2013 WL 6850483, at

*1 (11th Cir. Dec. 31, 2013) (“We have since interpreted Wofford's holding to impose

two necessary, but not sufficient, steps to qualify under the savings clause: (1) the

The Wofford test requires a petitioner to show: “(1) that [the] claim is based upon a

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retroactively applicable Supreme Court decision; (2) the holding of that Supreme Court decision

establishes the petitioner was convicted for a nonexistent offense; and (3) circuit law squarely

foreclosed such a claim at the time it otherwise should have been raised in the petitioner’s trial,

appeal, or first § 2255 motion.” Wofford, 177 F.3d at 1244. A prisoner must satisfy all three prongs

of this test before the Wofford threshold is met. “[T]he savings clause does not exist to free a

prisoner of the effects of his failure to raise an available claim earlier.” Id. at 1245.

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prisoner must present a retroactively applicable Supreme Court decision; and (2) that

decision must have overturned circuit precedent that resolved his claim in a way that

prevented him from bringing it at trial, on appeal, or in his first § 2255 motion.”).

Although captioned as a § 2241 petition, petitioner is undoubtedlychallenging

the validity of her judgment of conviction and sentence, not the execution of her

sentence. All of petitioner’s claims are direct appeal or § 2255 claims that could have

been, and were to some extent, raised in an earlier proceeding. See Antonelli, 542

F.3d at 1351-52 (“[A] prisoner may not avoid [the] gatekeeping [provisions] under

§ 2244(b) or § 2255(h) by a mere change of caption when, in substance, their lawsuit

collaterally attacks a [conviction or] sentence.”). Petitioner, recognizing the

procedural bars she must overcome to bring her claims, alleges she is eligible for

relief under the savings clause and takes issue with the Middle District’s procedural

treatment of her original § 2255 motion. (Doc. 2, pp. 9-11). As to petitioner’s

argument concerning the Middle District’s procedural treatment of her previous

habeas petitions, such an argument in no way addresses her eligibility to proceed

under the savings clause; as such, this argument does not satisfy the requisite steps

needed for this court to hear her petition. 

Petitioner next argues that two Supreme Court decisions apply retroactively to

her case–Holloway v. United States, 526 U.S. 1 (1999) and Jones v. United States,

526 U.S. 227 (1999). For a new rule of law, “[i]t is not enough that the new rule is

or will be applied retroactively by the Eleventh Circuit or that it satisfies the criteria

for retroactive application set forth by the Supreme Court . . . .” In re Joshua, 224

F.3d 1281, 1283 (11th Cir. 2000) (citations omitted). Instead, the “Supreme Court

must make [the new rule] retroactive to cases on collateral review.” Id. As to Jones,

“it is clear that the Supreme Court has not made [the rule articulated in Jones v.

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United States] retroactive to cases on collateralreview.” Sustache-Rivera v. U.S., 221

F.3d 8, 15 (1st Cir. 2000). Similarly, Holloway also does not apply retroactively. See

Vieux v. Rathman, No. 2:11-cv-02209-KOB-PWG, 2014 WL 294469, at *3 (N.D.

Ala. Jan. 24, 2014) (“[N]either Jones [v. United States] nor Holloway [v. United

States] are retroactively applicable to cases on collateralreview.”). Finally, petitioner

contends that Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir.

2013) is applicable to her case. Bryant, however, dealt with a habeas petitioner’s

conviction under 18 U.S.C. § 922(g). 738 F.3d at 1256. In Bryant, petitioner relied

on Begay v. United States, 553 U.S. 137 (2008), a Supreme Court case which was

retroactively applicable on collateral review and was applicable to the facts of that

petitioner’s case. Here, petitioner was not convicted for the same offenses as the

defendant in Bryant, and petitioner’s cited cases are not retroactively applicable to her

claims. At this time, petitioner is procedurally barred from bringing such claims

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under a § 2255 motion. See Wofford, 177 F.3d at 1242 (“‘[T]he remedy afforded by

§ 2255 is not rendered inadequate or ineffective merely because an individual has

been unable to obtain relief under that provision . . . or because an individual is

procedurally barred from filing a § 2255 motion . . . .’” (alterations in original)).

Moreover, petitioner has not demonstrated any of the requisite factors entitling her

to proceed under the savings clause. See Williams, 713 F.3d at 1343; Wofford, 177

Bryant dealt with a petitioner’s prior concealed-firearm conviction (as well as two prior 3

drug convictions), which at the time that petitioner was convicted, qualified as a “violent felony”

under § 924(e)(2)(B). These three convictions qualified the petitioner for increased penalties under

the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). “Begay . . . narrowed the class

of people who are eligible for the § 924(e) increased statutory maximum of life for a § 922(g)

crime.” Id. at 1278 (emphasis in original). Here, petitioner’s convictions for use of a firearm during

a crime of violence arose under 18 U.S.C. § 924(c)(1) & 2 (Counts Seven and Nine). (Doc. 12-1,

p. 59). 

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F.3d at 1244. As petitioner has not demonstrated entitlement to pursue habeas corpus

relief under the savings clause, she cannot bring her claims by § 2241. 

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus filed under 28 U.S.C. § 2241

(doc. 1) be DISMISSED WITH PREJUDICE for lack ofjurisdiction, as petitioner has

not demonstrated entitlement to proceed under that section. 

2. That the Clerk be directed to close the file.

At Pensacola, Florida, this 6th day of May, 2014.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy thereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636;

United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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