Brestle v. Flournoy

• Decision Date: 18 March 2016
• Docket Number: CIVIL ACTION NO.: 2:15-cv-54
• Citation: Brestle v. Flournoy, CIVIL ACTION NO.: 2:15-cv-54 (S.D. Ga. Mar 18, 2016)
• Parties: GARY CHARLES BRESTLE, Petitioner, v. V.J. FLOURNOY, Respondent.
• Court: U.S. District Court — Southern District of Georgia

GARY CHARLES BRESTLE, Petitioner, v. V.J. FLOURNOY, Respondent.

CIVIL ACTION NO.: 2:15-cv-54

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION

March 18, 2016

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

PetitionerGary Charles Brestle("Brestle"), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, ("FCI Jesup"), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.(Doc. 1.)Respondents filed a Response.(Doc. 17.)For the reasons which follow, I RECOMMEND that the CourtDISMISS Brestle's Petition and that this case be CLOSED.I also RECOMMENDthe CourtDENY Brestle in forma pauperis status on appeal.

BACKGROUND

On January 4, 2008, Brestle was sentenced in the Southern District of Florida to a 120-month term of incarceration.(Doc. 17-2, pp. 1-2.)This sentence followed his convictions, via a guilty plea, for committing wire fraud, in violation of 18 U.S.C. § 1341, and money laundering (promotion), in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and (2).Id.Brestle has a projected release date of December 13, 2016, via good conduct time release, to be followed by three (3) years of supervised release.(Doc. 17-1.)Brestle is currently serving his sentence at FCI Jesup, where RespondentV.J. Flournoy serves as the Warden.

Brestle has filed a litany of pleadings in this action.However, his claims boil down to a request to receive a reduction in his sentence for having provided cooperation to federal officials.(Doc. 1.)Brestle states that he"was promised a 'sentence reduction''credit,'(time off the duration of his sentence), for his cooperation for reporting crimes against the United States, which involved the capturing of incriminating documents, and other inter alia [sic], which illustrate these crimes perpetrated by federal inmates in the custody of Respondent, and numerous outside coconspirators."(Doc. 1, p. 1.)He goes on to allege that he assisted in uncovering a "'money laundering scheme' perpetrated by federal inmates" and others that "promote acts of terrorism."(Id. at p. 2.)

DISCUSSION

I.Whether Brestle can Proceed Pursuant to Section 2241¹

Section 2241 habeas corpus petitions "'are generally reserved for challenges to the execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement.'"Vieux v. Warden, 616 F. App'x 891, 896(11th Cir.2015)(quotingBryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1288(11th Cir.2013)(emphasis omitted)).Ordinarily, an action in which an individual seeks to collaterally attack "the validity of a federal sentence must be brought under § 2255," in the district of conviction.28 U.S.C. § 2255(a);Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333(11th Cir.2013).To utilize Section 2241 to attack the validity of a federal sentence or conviction, a petitioner must show that the remedy afforded under Section 2255 is "inadequate or ineffective" to challenge thevalidity of a conviction and/or sentence.Taylor v. Warden, FCI Marianna, 557 F. App'x 911, 913(11th Cir.2014).

The United States Court of Appeals for the Eleventh Circuit provides two "challenges to which the savings clause" is applicable.Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1343(11th Cir.2013).First:

[t]he 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.

Id.(alteration in original)(quotingWofford v. Scott, 177 F.3d 1236, 1244(11th Cir.1999)).Second, the savings clause may apply when "a fundamental defect in sentencing occurred and the petitioner had not had an opportunity to obtain judicial correction of that defect earlier."Id.(citations omitted)(internal quotation marks omitted).

The Eleventh Circuit "retreated from the purported three-factor test enumerated in Wofford, calling it only dicta, and explain[ed] that [t]he actual holding of the Wofford decision . . . is simply that the savings clause does not cover sentence claims that could have been raised in earlier proceedings."Turner, 709 F.3d at 1333(alteration in original)(internal citation and punctuation omitted).However, Wofford's holding establishes two necessary conditions—although it does not go so far as holding them to be sufficient—for a sentencing claim to pass muster under the savings clause."Williams, 713 F.3d at 1343.

First, the claim must be based upon a retroactively applicable Supreme Court decision.The second, and equally essential, condition is that 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.

Id."The petitioner bears the burden of coming forward with evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255 remedy."Smith v. Warden, FCC Coleman-Low, 503 F. App'x 763, 765(11th Cir.2013)(citation omitted)."A petitioner may not argue the merits of his claim until he has opened the portal to a § 2241 proceeding by demonstrating that the savings clause of § 2255(e) applies to his claim."Id.(citation omitted).

Though Brestle styles his action as a Section 2241 Petition, he offers no assertion as to how the remedy afforded under Section 2255 is inadequate or ineffective to challenge the legality of his convictions and sentence.Because Brestle has not satisfied the requirements of Section 2255's savings clause, he cannot "open the portal" to argue the merits of his claim.Dean v. McFadden, 133 F. App'x 640, 642(11th Cir.2005).

Brestle argues that he is challenging the manner in which his sentence is being executed.(Doc. 19, pp. 2-3(citingBishop v. Reno, 210 F.3d 1295, 1304 n.14(11th Cir.2000).)He also cites Federal Rule of Criminal Procedure 35(b) in support of his request. However, federal courts that have addressed these same arguments have found that Section 2241 does not provide an avenue for relief. Whitaker v. Dunbar, 83 F. Supp. 3d 663, 668(E.D.N.C.2014)("As for [petitioner's] claim [for a reduction in his sentence] under Rule 35, the claim is not cognizable in a section 2241 petition.")(citations omitted));Garcia v. Beeler, No. CIV.A. 97-5624(JEI), 1998 WL 418041, at *1(D.N.J.July 20, 1998)("This court may not consider [petitioner's] habeas corpus petition, under 28 U.S.C. § 2241, because sentencing reductions should be challenged before the sentencing court under 28 U.S.C. § 2255 not under 28 U.S.C. § 2241.Therefore, this court does not have jurisdiction.").

For example, in Hicks v. Patton, No. 07CV046-HRW, 2007 WL 2793847(E.D. Ky.Sept. 26, 2007), the petitioner, like Brestle, brought an action in the district of his imprisonmentalleging that the government violated its agreement to move to reduce his sentence after he provided significant cooperation during his imprisonment.Hicks, the petitioner, did not rely upon Section 2255 savings clause but instead argued, like Brestle, that he challenged the execution of his sentence, not its imposition.Id. at *5.The court nonetheless found that Section 2241 did not provide it with jurisdiction to grant the petitioner his requested relief.Id.("Hicks' trial court is the only court with jurisdiction to decide Petitioner's claim that he is entitled to a sentence reduction based upon a post-sentencing agreement made with representatives of the United States. . . .There simply is no authority for this Court to entertain the claim.").

The court in Garcia, 1998 WL 418041, at *4-6, came the same conclusion when refusing to hear a 2241 petition based on the petitioner's cooperation during his incarceration.The rationale of the Garcia court is particularly instructive, and thus, the Court quotes it at length:

Petitioner is correct in asserting that the post-sentencing nature of the petition clouds the jurisdictional issue, but he is not necessarily correct in assuming that § 2255 is not the proper statute under which to seek relief where the government allegedly breaches an agreement to make a Rule 35(b) motion.

According to Federal Habeas Corpus Practice and Procedure, § 2241 is the appropriate means of relief only in the following narrow contexts: (1) Administration of parole; (2) Computation of credit for pre-trial detention, good time credit, and other means of shortening sentences that are administered by prison officials; (3) Prison disciplinary actions, transfers, and changes in the type of detention; (4) Prison conditions; (5) Extradition; (6) Deportation or exclusion; (7)Court martial proceedings.Federal Habeas Corpus Practice and Procedure, § 41.2(b) at 1185-1188.

These contexts are similar to the situation at bar in that none are the product of an error made by the sentencing judge.Since Rule 35(b) motions are not entered by the sentencing judge and they are "other means of shortening sentences," it is understandable why petitioner would argue that § 2241, rather than § 2255, affords him relief.

Nevertheless, most courts appear to accept that challenges to the government's failure to make a Rule 35(b) motion are more properly brought under § 2255.There are a plethora of cases where prisoners have filed for relief in Rule 35(b) situations and most, if not all, have been decided under § 2255.SeeUnited Statesv.Nino, 878 F.2d 101, 103(3d Cir.1989);United States v. Gibbs, 813 F.2d 596, 603(3d Cir.1986).In fact, the Seventh Circuit has held that challenges to the government's breach of an agreement to file a Rule 35(b) motion must be brought under § 2255.SeeJackson v. Pitzer, 108 F.3d 1379(7th Cir.1997);

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