UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

FREDERICK TURNER,

Petitioner,

v. Case No: 5:22-cv-689-WFJ-PRL

WARDEN, FCC COLEMAN-LOW,

Respondent. __________________________________

ORDER DISMISSING CASE

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

. (Doc. 1). I. BACKGROUND In 2021, Petitioner was found guilty, following a bench trial, of conspiracy to possess with intent to distribute cocaine, in violation of

; possession with intent to distribute cocaine, in violation of

(a)(1); and possession of a firearm in furtherance of a drug trafficking crime, in violation of

(c). See Case No. 1:20-cr-21-KD-MU-1 (S.D. Ala.). Petitioner was sentenced to 180 months in prison. Petitioner appealed and the United States Court of Appeals for the Eleventh Circuit affirmed. United States v. Turner, No. 21-11622 (11th Cir. Sept. 29, 2022). II. ANALYSIS Collateral attacks on the legality of a sentence must be brought under

. The text of the “savings clause” of section 2255(e) permits a federal prisoner to challenge his sentence under section 2241 only where “the remedy by motion is

inadequate or ineffective to test the legality of his detention.”

(e). The petitioner must prove that a section 2255 motion is “inadequate or ineffective.” McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,

(11th Cir. 2017) (en banc). In McCarthan, the Eleventh Circuit held that a prisoner has a “meaningful opportunity” to test his claim in a § 2255 motion even if that claim is foreclosed by

binding precedent or barred by a procedural rule. Id. at 1086-87. Absent narrow exceptions, the Eleventh Circuit has held that section 2241 is unavailable to challenge the validity of a sentence. McCarthan,

. The Eleventh Circuit recently provided examples in which, post-McCarthan, a motion to

vacate would be an inadequate mechanism to test a prisoner’s claim and thus a section 2241 would be an appropriate vehicle to test that prisoner’s claim: McCarthan gave three examples of when a motion to vacate would be an inadequate mechanism to test a prisoner’s claim: (1) if a federal prisoner challenges the execution of his sentence, e.g., the deprivation of good- time credits or parole determinations; (2) if the sentencing court is unavailable or has been dissolved; or (3) if practical considerations, such as multiple sentencing courts, prevent a petitioner from filing a motion to vacate.

Williams v. Warden, FCC Coleman,

, 326 (11th Cir. 2020) (internal citations omitted). Although the examples provided by the McCarthan court are not exhaustive, if a prisoner’s claim fits within those categories identified in McCarthan, he may file a section 2241 habeas petition under section 2255(e)’s saving clause. But again, the focus is whether the “prisoner’s claim merely challenges ‘the validity of his sentence.’”

(internal citations omitted). If that is the focus of the claim, the prisoner “cannot

proceed under § 2241 because he could raise this claim in a § 2255 motion.” Id. (internal citations omitted). Petitioner challenges “the legal validity of the purported conviction entered unlawfully by the trial court.” (Doc. 1 at 1). Petitioner specifically argues that the trial court erred by failing to grant his motion to suppress. See Doc. 1 at 2–4. Petitioner

claims that the illegally seized evidence was used to obtain his conviction. Id. 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. Here,

Petitioner has failed to demonstrate that a motion to vacate filed under section 2255 is “inadequate or ineffective.” McCarthan,

. Even construing his pro se petition liberally, as the Court must, his claim is not cognizable under section 2241 because he challenges the validity of his underlying sentence, not the execution of his sentence. Petitioner has failed to show the applicability of section 2255(e)’s savings

clause, and this Court therefore lacks jurisdiction to adjudicate this section 2241 petition. 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 May 26, 2023.

WILLIAM F. ca UNITED STATES DISTRICT JUDGE

Copies to: Pro Se Petitioner