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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILHEMINA BRYAN, 

Petitioner,

vs. Case No. 4:10cv496-RH/WCS

UNITED STATES OF AMERICA,

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

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

to 28 U.S.C. § 2241 and supporting memorandum. Docs. 1 and 2. The filing fee was

paid. 

Petitioner challenges her sentence imposed in the Middle District of Florida. 

Doc. 1, p. 2. She filed a 28 U.S.C. § 2255 motion in that court, and the motion was

denied. Id., pp. 2-3. 

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A challenge to a sentence is cognizable by motion filed pursuant to 28 U.S.C. §

2255, which provides in relevant part: 

A prisoner in custody under sentence of a court established by Act of

Congress 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, may move the court which

imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). 

Under the "savings clause" of § 2255, a petition for writ of habeas corpus filed by

a prisoner authorized to seek relief under § 2255 "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." § 2255(e). 

Petitioner challenges her sentencing enhancement, claiming she is actually

innocent of being a career offender under the United States Sentencing Guidelines,

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

and Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010) (other citations omitted). 

The Gilbert opinion cited by Petitioner was vacated and rehearing en banc was granted.

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

Circuit said, "the savings clause does not authorize a federal prisoner to bring in a §

2241 petition a claim, which would otherwise be barred by § 2255(h), that the

sentencing guidelines were misapplied in a way that resulted in a longer sentence not

exceeding the statutory maximum." Gilbert v. United States, F.3d , 2011 WL

1885674, at *29 (11th Cir. May 19, 2011). 

Case No. 4:10cv496-RH/WCS

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The Eleventh Circuit rejected the argument that Gilbert was convicted of (and

therefore could be actually innocent of) being a career offender:

A defendant who is convicted and then has the § 4B1.1 career offender

enhancement, or any other guidelines enhancement, applied in the

calculation of his sentence has not been convicted of being guilty of the

enhancement. . . . Gilbert's position turns on treating sentences as

convictions, and an argument that depends on calling a duck a donkey is

not much of an argument..

Id., at *25. The court also rejected application of the actual innocence of sentence

exception applicable to death cases, holding that it "does not apply to claims that the

guidelines were misinterpreted to produce a higher guidelines range than would

otherwise have applied." Id., at *25-*28. 

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

Petitioner's sentence imposed in the Middle District of Florida, be SUMMARILY

DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on May 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. 4:10cv496-RH/WCS

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