UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

RAYSHAWN DEMOSTHENE,

Petitioner,

v. Case No: 5:21-CV-629-WFJ-PRL

WARDEN, FCC COLEMAN-USP I,

Respondent. ______________________________

ORDER DISMISSING CASE

Petitioner, proceeding pro se, initiated this case by filing a Petition for writ of habeas corpus pursuant to

. (Doc. 1). Petitioner asserts that he is “factually innocent in light of a recent supreme court decision and his sentence is being carried out under an unlawful plea agreement.” See Doc. 1 at 6-8, 13-15. Petitioner’s motion to vacate, set aside, or correct his sentence under

was denied. See Case 1:18-cv-05346-PKC (S.D.N.Y). Petitioner then moved for leave to file a successive § 2255, raising some version of the claims raised in this instant Petition. The motion was denied. See Case No. 21-647 (2d Cir. May 4, 2021). 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. Recently, sitting en banc the Eleventh Circuit overruled prior precedent and held that

is not available to challenge the validity of a sentence except on very narrow grounds not present in this case. McCarthan v. Director of Goodwill Industries- Suncoast, Inc.,

(11th Cir. 2017) (en banc) (quoting

(e)); Bernard v. FCC Coleman Warden,

(11th Cir. 2017) (citing McCarthan,

). Thus, pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (directing sua sponte dismissal if the petition and records show that the moving party is not entitled to relief), this case is DISMISSED. See also

(b). The Clerk is directed to enter judgment dismissing this case without prejudice, terminate any pending motions, and close the file. IT IS SO ORDERED. DONE AND ORDERED at Tampa, Florida, on March 24, 2022. lite, UNITED STATES DISTRICT JUDGE Copies to: Pro Se Petitioner