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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

SAMUEL NORRIS.

Petitioner,

vs. Case No.: 5:11cv84/RH/EMT

PAIGE AUGUSTINE,

Respondent

REPORT AND RECOMMENDATION

This matter is before the court upon a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241 and brief in support (docs. 1, 2), and the Government’s response thereto (doc. 9). 

Petitioner filed a motion for extension of time to file a reply, and the motion was granted (docs. 12,

13), but he never filed a reply.

Background

Petitioner is a federal inmate currently incarcerated at the Butner Federal Medical Center in

Butner, North Carolina, although he was incarcerated at the Federal Correctional Institution at

Marianna, Florida at the time he filed this petition.1

 He pleaded guilty in May of 2007 in the

Northern District of Texas to violating 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted

felon, with an Armed Career Criminal Enhancement pursuant to 18 U.S.C. § 924(e) (doc. 9, exh. 3). 

The pre-sentence investigation report (“PSR”) reflected that Petitioner, then-Defendant,

acknowledged he was appropriately classified as an Armed Career Criminal and subject to an

enhanced sentence (doc. 9, exh. 2, ¶ 5). Although Petitioner filed some objections to the PSR, he

did not object to the calculation of his sentence or the enhancement (id., addendum). Petitioner was

sentenced to a term of 210-months imprisonment (doc. 9, exh. 4 at 4). The Armed Career Criminal

1

The court has ascertained this information on the Bureau of Prisons website, although Petitioner did not file

a notice of change of address. See http://www.bop.gov/iloc2/LocateInmate.jsp. 

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Act (“ACCA”) was again mentioned at sentencing (id. at 3). Defendant appealed, and counsel filed

a an Anders brief (see Anders v. California, 386 U.S. 738 (1967)). The appeal was dismissed as

frivolous in May of 2008 (doc. 9, exh. 1, NDTX docs. 39, 40). Petitioner did not file a motion

pursuant to 28 U.S.C. § 2255. However, on April 12, 2010, he filed a motion pursuant to 18 U.S.C.

§ 3582 to correct sentence. In that motion, he alleged that his sentence had been improperly

calculated due to the court’s consideration of his prior convictions as crimes of violence, and its

consideration of his three burglary convictions as separate offenses for enhancement purposes (doc.

9, exh. 1, NDTX doc. 42). The motion was denied after a response by the Government was

submitted (see doc. 9, exh. 1, NDTX docs. 44, 45). On December 20, 2010, Petitioner filed a motion

for reconsideration, alleging that he was actually innocent of being an Armed Career Criminal (doc.

9, exh. 1, NDTX doc. 46), and this motion was denied as well (id., doc. 47). In the instant petition,

Petitioner essentially seeks to relitigate the district court’s determination that he was subject to the

ACCA enhancement.

Analysis

Petitioner contends that the sentencing court erred by considering his three prior burglary

convictions for offenses that took place over a six-day period in 1990 as three separate offenses. He

asserts that under § 4A1.2(a)(2) of the Sentencing Guidelines, this conduct should have counted as

a single conviction. He also challenges the court’s consideration of a November 1994 conviction

for “non-aggravated” robbery as a crime of violence, and hence a predicate offense. Petitioner

concludes that because of these errors, he is actually and legally innocent of being an Armed Career

Criminal. He acknowledges that the time period for filing a § 2255 motion has passed, but he claims

that “recent retroactive law establishes that he is actually and factually innocent of the ACCA

enhancement in his case.” 

A petition pursuant to title 28 U.S.C. § 2241 is not the proper vehicle for raising a claim of

district court error in sentencing. The continuation or execution of an initially valid confinement

is generally the sole issue in a § 2241 action. See Thomas v. Crosby, 371 F.3d 782, 810 (11th Cir.

2004) (citing McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997));

Broussard v. Lippman, 643 F.2d 1131 (5th Cir. 1981); United States v. Jordan, 915 F.2d 622, 629

(11th Cir. 1990); Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351–52 (11th Cir. 2008);

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Bishop v. Reno, 210 F.3d 1295, 1304 (11th Cir. 2000); see also Chambers v. United States, 106 F.3d

472, 474–75 (2d Cir. 1997) (noting that § 2241 allows challenges to the execution, rather than

imposition of, a sentence and articulating instances where a federal prisoner may properly file a

§ 2241 petition). Title 28 U.S.C. § 2241 provides an avenue for challenges to matters such as the

administration of parole, prison disciplinary actions, prison transfers, and type of detention. See

Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008). A collateral attack on the validity of a

federal conviction and sentence, including the imposition of sentence, is more properly brought

under 28 U.S.C. § 2255 in the district of conviction. Antonelli, 542 F.3d at 1351; Jordan, 915 F.2d

at 629; McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979); Hadjuk v. United States, 764 F.2d 795

(11th Cir. 1985). 

Petitioner has not filed a motion under 28 U.S.C. § 2255, and the time for doing so has likely

elapsed. This alone does not allow him to proceed under 28 U.S.C. § 2241. Title 28 U.S.C.

§ 2255(e) provides in pertinent part:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized

to apply for relief by motion pursuant to this section, 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.

28 U.S.C. § 2255(e) (emphasis added); Wofford v. Scott, 177 F.3d 1236, 1238 (11th Cir. 1999)

(quoting § 2255 with added emphasis). The italicized language is known as the “savings clause,”

and could allow habeas corpus review of a claim barred under § 2255, but only in limited

circumstances.

The savings clause of § 2255 applies to a claim when: 1) that claim is based upon a

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; Darby v. Hawk-Sawyer, 405 F.3d. 942, 945 (11th Cir. 2005); see also

Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001); United States v. Peterman, 249 F.3d

458, 461 (6th Cir. 2001). Failure to meet a single prong means a petitioner’s claim fails. See

Wofford, 177 F.3d at 1244; Flint v. Jordan, 514 F.3d 1165, 1168 (11th Cir. 2008). To prove that an

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offense is non-existent, a petitioner must show he was imprisoned for conduct that was not

prohibited. Darby, supra (citing Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003)). Despite

his vague reference to “recent Supreme Court decisions,” Petitioner’s case fails the Wofford test. 

There is no retroactively applicable Supreme Court decision that establishes that he was convicted

of what is now a “non-existent offense.” 

It is well established that § 2241 does not provide an additional, alternative or supplemental

remedy to 28 U.S.C. §2255 or an additional bite at the proverbial apple, particularly when the

identical issues could have been raised in a timely § 2255 motion or on direct appeal. See, e.g.,

Wofford, supra; Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997); Bradshaw v. Story,

86 F.3d 164, 166 (10th Cir. 1996). Likewise, the fact that petitioner cannot meet the gate-keeping

requirements of the Antiterrorism and Effective Death Penalty Act does not open the door to a

§ 2241 petition. Jiminian v. Nash, 245 F.3d 144, 147–48 (2d Cir. 2001); Charles v. Chandler, 180

F.3d 753, 758 (6th Cir. 1999). And, section 2255 is not inadequate or ineffective merely because

the one-year statute of limitations has expired. Cradle v. United States ex rel. Miner, 290 F.3d 536,

539 (3d Cir. 2002); Haugh v. Booker, 210 F.3d 1147 (10th Cir. 2000). Thus, the instant petition

must be dismissed.2

Accordingly, it is respectfully RECOMMENDED:

That the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (doc. 1) be

DENIED and DISMISSED with prejudice. 

2 Because of the court’s finding that relief pursuant to § 2241 is unavailable to Petitioner, it

need not conduct a detailed “merits review” of his claims. The court does note, however, that

Eleventh Circuit case law clearly forecloses Petitioner’s argument that the burglary offenses were

not properly considered separate offenses. See, e.g., United States v. Davies, 391 Fed.Appx. 822,

825 (11th Cir. 2010) (citing cases); United States v. Spears, 443 F.3d 1358, 1360 (11th Cir. 2006)

(robberies committed within two minutes and twenty-five feet of each other constituted separate

offenses for purposes of ACCA); United State v. Pope, 132 F.3d 684, 692 (11th Cir. 1998)

(burglaries of structures 200 yards apart on same evening were separate offenses for purposes of

ACCA); United States v. Owens, 15 F.3d 995, 998 (11th Cir. 1994) (crimes that occurred on

different dates supported ACCA enhancement “although they were all resolved in one proceeding”).

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At Pensacola, Florida, this 30th day of April 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

fourteen (14) 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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