Walton v. Warden, FCC Coleman - Low

• Court: District Court, M.D. Florida
• Decided: October 26, 2020
• Docket: 5:18-cv-00455
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

PHILLIP WALTON,

Petitioner,

v. Case No: 5:18-cv-455-Oc-60PRL

WARDEN, FCC COLEMAN – LOW,

Respondent.

ORDER

Petitioner initiated this civil action by filing a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1). Respondent filed a Response (Doc. 13). The Court provided Petitioner with an opportunity to file a reply (Doc. 14), but he did not do so. In his Petition, Petitioner asserts the sentencing court erroneously applied the “career offender enhancement” under USSG § 4B1.1 when imposing his sentence. He argues the enhancement does not apply to him because his prior state court conviction for delivery of cocaine in violation of F.S. § 893.13 does not qualify as a “controlled substance offense” under USSG § 4B1.2 (Doc. 1-1 at 17). As a result, according to Petitioner, he must be resentenced without the imposition of the career offender enhancement (id.). a. Background Petitioner is a federal inmate incarcerated at the Coleman Federal Correctional Complex. Petitioner was charged by Indictment in the Southern District of Florida with the following crimes: felon in possession of a firearm (count one); possession of an unregistered firearm with a barrel length of less than 18

inches (count two); possession with intent to distribute 5 grams or more of cocaine base (count three); and possession of a firearm in furtherance of a drug trafficking crime (count four) (Doc. 13 at 2). A jury convicted Petitioner of counts one, two, and three, and found him not guilty of count four (id.). The District Court sentenced Petitioner to 120-month term of incarceration on counts one and two to run concurrent with a 300-month term of incarceration for count three (id. at 2-3). Petitioner appealed and the Eleventh Circuit Court of Appeals affirmed his

judgment and sentences (id. at 3). Petitioner then filed two § 2255 motions, both of which were denied (id. at 2). b. Analysis Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that “[i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” See also Rule 12, Rules Governing Section 2255

Proceedings. The Eleventh Circuit has held that 28 U.S.C. § 2241 is not available to challenge the validity of a sentence except on very narrow grounds. McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1079 (11th Cir. 2017); Bernard v. FCC Coleman Warden, 686 F. App’x 730 (11th Cir. 2017) (citing McCarthan, 851 F.3d at 1092-93). None of those grounds are present in this case. Thus, pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, this case is due to be dismissed.! See also 28 U.S.C. § 2255(b). Accordingly, it is ORDERED and ADJUDGED: The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED, and this case is DISMISSED with prejudice. DONE AND ORDERED in Tampa, Florida, this 26th day of October, 2020.

eo ne

7 ih = te TOM BARBER UNITED STATES DISTRICT JUDGE

Jax-7 C: Phillip Walton, #79053-004 Lacy R. Harwell, Jr., Esq.

' The Court notes that this case is Petitioner’s second attempt to challenge his sentence under § 2241. See Walton v. Warden, FCC Coleman — Low, No. 5:16-cv-448-Oc-41PRL (M.D. Fla. Feb. 27, 2019) (Doc. 11). The Court also dismissed that case under the purviews of McCarthan.