Charles Rodney Lovett v. Warden, FCC Coleman-USP I

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 2, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-12856
Non-Argument Calendar
________________________
D. C. Docket No. 09-00160-CV-OC-10GRJ
CHARLES RODNEY LOVETT,
Petitioner-Appellant,
versus
WARDEN, FCC Coleman- USP I,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 2, 2010)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

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Charles Rodney Lovett, a federal prisoner, appeals the district court’s
dismissal without prejudice of his pro se petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2241. The district court did not err in dismissing Lovett’s
petition without prejudice because Lovett failed to meet his burden of showing that
a 28 U.S.C. § 2255 motion was an ineffective remedy. Accordingly, we AFFIRM.
I. BACKGROUND
In February 2006, Lovett pled guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district
court sentenced him to 180 months of imprisonment, followed by 60 months of
supervised release. Lovett did not appeal.
In April 2009, the district court docketed Lovett’s instant pro se motion,
entitled “Verified Petition for Writ of Habeas Corpus Filed Pursuant to the 1940th
Edition of 28 U.S.C. § 451 Et Seq.” R1-1 In his petition, Lovett argued that 18
U.S.C. § 3231, 28 U.S.C. § 2241, and 28 U.S.C. § 2255 were unconstitutional
because they were not properly enacted. Id. at 4-15, 17-25. Accordingly, he
claimed that his conviction and incarceration were illegal and unconstitutional
because the district court never had jurisdiction over him. Id. at 17. He also
claimed that, because the district court did not have subject-matter jurisdiction
pursuant to § 2241 or § 2255, he had the right to raise his habeas corpus petition
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under 28 U.S.C. § 451. Id. Lovett also challenged the constitutionality of his
conviction, arguing that 18 U.S.C. §§ 922(g) and 924 did not apply to him because,
as he had never registered the firearm he possessed, and that he had not consented
to be subject to federal firearms restrictions. Id. at 25-27. Lovett further claimed
that 18 U.S.C. § 922(g) was unconstitutional because it was not within Congress’s
authority under the Commerce Clause. Id. at 28-30. Finally, Lovett argued that
the government and the district court committed fraud by indicting and convicting
him under unconstitutional statutes, and thus his indictment and conviction were
null and void. Id. at 31-37. He sought to have his convictions vacated and to be
released from prison immediately. Id. at 38.
The district court dismissed Lovett’s petition without prejudice, (1)
construing it as a petition filed pursuant to 28 U.S.C. § 2241; but (2) finding that
Lovett was challenging the validity of his sentence rather than the means of its
execution; and (3) noting that the primary means of collaterally attacking a federal
conviction and sentence was through a motion pursuant to 28 U.S.C. § 2255. R1-
3. Lovett filed this appeal. R1-5.
II. DISCUSSION
Lovett first reargues the merits of his original petition. Lovett points out that
since jurisdictional claims cannot be waived, forfeited, time barred, or procedurally
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defaulted, the district court had the obligation to address the merits of his
jurisdictional claims. He argues that, pursuant to Clisby v. Jones, 960 F.2d 925
(11th Cir. 1992), and the Due Process Clause, the district court was obligated to
address all the claims raised in his habeas petition regardless of whether habeas
relief was granted or denied.
“When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (per
curiam). Ordinarily, a defendant may only pursue a collateral attack on the validity
of his federal conviction or sentence pursuant to a motion filed under 28 U.S.C. §
2255. See Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). However, on
rare occasions, it is possible for federal prisoners to attack their convictions and
sentences through § 2241if the petitioner establishes that the remedy under § 2255
is inadequate or ineffective. 28 U.S.C. § 2255(e); McGhee v. Hanberry, 604 F.2d
9, 10 (5th Cir. 1979). “The burden of coming forward with evidence affirmatively
showing the inadequacy or ineffectiveness of the § 2255 remedy rests with the
petitioner.” McGhee, 604 F.2d at 10. We have articulated a three-prong test to
determine whether § 2255 is inadequate or ineffective to test the legality of a
prisoner’s detention. According to that test, a prisoner must show
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1) that [the] 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 v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).
Federal courts may recharacterize a pro se litigant’s motion “in order to
avoid an unnecessary dismissal, to avoid inappropriately stringent application of
formal labeling requirements, or to create a better correspondence between the
substance of a pro se motion’s claim and its underlying legal basis.” See Castro v.
United States, 540 U.S. 375, 381-82, 124 S.Ct 786, 791-92 (2003) (internal
citations omitted). However, when a district court recharacterizes a motion as a
first § 2255 motion, it must “provide the litigant an opportunity to withdraw the
motion or to amend it so that it contains all the § 2255 claims he believes he has.”
Id. at 383, 124 S.Ct. at 792.
In Clisby, we expressed concern over the number of habeas cases we were
forced to remand for consideration of issues the district court did not resolve and
instructed district courts to resolve all claims presented in a habeas petition,
regardless of whether they granted or denied relief. Clisby, 960 F.2d at 935-36;
see also Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009) (per curiam)
(holding that Clisby applies to federal prisoners). Clisby was not decided in the
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context of a petition that was dismissed without examination of the merits but in
the context of a petition where the merits were addressed, but the district court
failed to discuss all the issues presented. Clisby, 960 F.2d at 936.
As initial matters, first, Lovett’s argument that due process and Clisby
require the district court to address all of his claims fails because the district court
did not address any of Lovett’s claims but instead dismissed his motion because it
should have been filed pursuant to § 2255. R1-3; Clisby, 960 F.2d at 935-36.
Second, the government’s claim that the district court did not err because, if it had
recharacterized Lovett’s motion as a § 2255 it would have been time-barred, is not
relevant because, regardless of whether a § 2255 motion is timely, when a district
court recharacterizes a motion as a first § 2255, it first is required to give the
defendant certain warnings and the opportunity to add claims and arguments,
including those applicable to the timeliness of a § 2255 motion. See Castro, 540
U.S. at 383, 124 S.Ct. at 792.
In the instant case, the district court exercised its discretion to recharacterize
Lovett’s petition for habeas corpus, purported to be filed pursuant to 28 U.S.C. §
451, as a 28 U.S.C. § 2241 petition. See Castro, 540 U.S. at 381, 124 S.Ct at 791.
The district court then did not err in dismissing Lovett’s petition without prejudice
because Lovett did not meet the burden of showing that § 2255 was an ineffective
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remedy as he did not allege that his claims were based on a retroactively applicable
Supreme Court decision, that a Supreme Court decision made his offense
nonexistent, and that circuit law formerly foreclosed his claims. See Wofford, 177
F.3d at 1244; McGhee, 604 F.2d at 10.
III. CONCLUSION
Because Lovett failed to satisfy his burden of demonstrating that a motion
pursuant to 28 U.S.C. § 2255 would be an ineffective remedy, the district court did
not err in dismissing his petition for 28 U.S.C. § 2241 relief. Accordingly, we
AFFIRM.
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