Opinion and Order — United States v. Wilson P. Louis (M.D. Fla., Dkt. 50, filed 06/05/15)

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Opinion and Order in the Middle District of Florida, Fort Myers Division, on Wilson P. Louis's Motion for Post-Conviction Relief. He sought to vacate his convictions so that he would not be removed from the United States, saying he was told removal was possible but not that it was mandatory. His judgment imposed 37 months on eight federal firearms offenses, to run concurrently, followed by three years of supervised release. The Court finds his Florida procedural authorities inapplicable and no relief available under 28 U.S.C. 2255, because he did not raise the Padilla issue on direct appeal and the time to file has expired. It also finds no basis under 2241 or any other jurisdiction and dismisses the motion.

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Case 2:12-cr-00024-JES-DNF Document 50 Filed 06/05/15 Page 1 of 4 PageID 152



                     UNITED STATES DISTRICT COURT
                      MIDDLE DISTRICT OF FLORIDA
                          FORT MYERS DIVISION


UNITED STATES OF AMERICA


VS.                                      Case No: 2:12-cr-24-FtM-29DNF


WILSON P. LOUIS


                             OPINION AND ORDER

      This matter comes before the Court on defendant’s Motion for

Post-Conviction     Relief    (Doc.   #49)   filed   on   May   11,    2015.

Defendant seeks to vacate his prior convictions, and withhold

adjudication on some offense(s) so that he will not be removed

from the United States.           Defendant states that while he was

informed at his guilty plea that he could be removed from the

United States, he was not told removal was mandatory and did not

appreciate the consequences until he was taken into immigration

custody for removal.

      On   August   29,   2012,   Judgment   (Doc.   #44)   was   entered,

sentencing defendant to 37 months imprisonment on eight federal

firearms offenses, the terms to run concurrently, followed by three

years of supervised release.          Defendant did not file a direct

appeal of his convictions, or any post-conviction motions prior to

his current Motion for Post-Conviction Relief (Doc. #49).             In this
Case 2:12-cr-00024-JES-DNF Document 50 Filed 06/05/15 Page 2 of 4 PageID 153



motion, defendant relies upon Florida procedural rules and case

law.    For the reasons set forth below, the motion is dismissed.

       Defendant’s reliance upon Florida procedure and case law is

unavailing in this case.        Florida case law does not govern the

procedures   in   a   federal   criminal   case.    The   Court,   however,

reviews a pro se defendant’s filings liberally, and will therefore

discuss potential federal bases for jurisdiction.

       Defendant, relying upon Padilla v. Kentucky, 559 U.S. 356

(2010), asserts that while he was told at the time of his guilty

pleas that he could be removed from the United States, he was not

told this removal was mandatory.           He asserts that Padilla is

retroactive, and requests a Padilla hearing.         Padilla was decided

on March 31, 2010; defendant pled guilty on May 22, 2012 (Doc.

#34).    Thus, there is no question of retroactivity.         If there was

a Padilla error, defendant could have raised it in a direct appeal.

       No relief is available to defendant under 28 U.S.C. § 2255.

While defendant’s confinement in the immigration detention center

does not constitute “custody” for § 2255 purposes, Llovera-Linares

v. Florida, 559 F. App’x 949, 951 (11th Cir. 2014), defendant is

still on supervised release, which does constitute “custody” under

§ 2255, United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997)

(a § 2255 movant, who was serving his term of supervised release

at the time of filing, was “in custody” within the meaning of §

2255).    However, by failing to raise the Padilla issue on direct



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Case 2:12-cr-00024-JES-DNF Document 50 Filed 06/05/15 Page 3 of 4 PageID 154



appeal, defendant has procedurally defaulted the issue and has not

shown any lawful excuse for the procedural default in a potential

petition under 28 U.S.C. § 2255.            Additionally, as defendant

notes, the time to file a § 2255 petition has expired, and

defendant asserts no basis to toll or extend the time.

     Defendant is not eligible to utilize 28 U.S.C. § 2241.             Under

the savings clause, 28 U.S.C. § 2255(e), a court may entertain a

§ 2241 petition attacking custody resulting from a federally

imposed sentence if the petitioner establishes that the remedy

provided for under § 2255 is “inadequate or ineffective to test

the legality of his detention.”            28 U.S.C. § 2255(e).          The

applicability of § 2255(e)’s savings clause is a threshold issue,

which imposes a subject-matter jurisdictional limit on § 2241

petitions.     Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d

1332, 1337-38 (11th Cir. 2013).            Defendant has made no such

showing.

     Because    defendant   is   proceeding   pro   se,   the   Court    must

construe his request for post-conviction relief liberally, United

States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997), and consider

all possible bases of authority even though none may be identified

by defendant, United States v. Jordan, 915 F.2d 622, 624-25 (11th

Cir. 1990), cert. denied, 499 U.S. 979 (1991).            The Court has no

inherent power to correct even an illegal sentence, but rather

must look to the specific parameters of federal statutes and the



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Federal Rules of Criminal Procedure.       United States v. Diaz-Clark,

292 F.3d 1310, 1315 (11th Cir. 2002), cert. denied, 539 U.S. 951

(2003).   The Court finds no other basis for jurisdiction to modify

or vacate the sentence.

     Accordingly, it is hereby

     ORDERED:

     Defendant’s Motion for Post-Conviction Relief (Doc. #49) is

DISMISSED.

     DONE and ORDERED at Fort Myers, Florida, this            5th    day of

June, 2015.




Copies:

Counsel of Record
Wilson P. Louis




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