Burke v. Warden, Desoto Correctional Institution

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

BRYAN DAVID BURKE,

Petitioner,

v. Case No: 2:24-cv-790-JES-KCD

WARDEN, DESOTO CORRECTIONAL

INSTITUTION,

Respondent.

/

OPINION AND ORDER

This cause is before the Court on Petitioner Bryan David

Burke’s pro se “Emergency Petition for Writ of Habeas Corpus.”

1

(Doc. 1). Burke brings the petition under 28 U.S.C. § 2241. (Id.

at 1.) He alleges that his current incarceration at the Desoto

Correctional Institution Annex is illegal because “[t]he

Indictment (charging document) does not charge [c]riminal offenses

against the laws of the United States, in violation of the U.S.

Const. Amend. XIV.” (Doc. 1 at 2). For the reasons discussed

below, the petition must be dismissed.

I. Legal Standard

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts directs the federal court to screen habeas

petitions prior to service. This rule applies to habeas actions

1

Upon review of the petition, the Court concludes that it

does not constitute an emergency.

under both 28 U.S.C. § 2254 and 28 U.S.C. § 2241. See R. 1(b),

Rules Governing Section 2254 (“[T]he district court may apply any

or all of these rules to a habeas petition not covered by Rule

1(a).”). Rule 4 requires the Court to dismiss the petition “[i]f

it plainly appears from the petition and any attached exhibits

that the petitioner is not entitled to relief in the district

court.” R. 4, Rules Governing Section 2254 Cases; see also

McFarland v. Scott, 512 U.S. 849, 856 (1994)(“ Federal courts are

authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face[.]”).

II. Discussion

Burke is currently serving concurrent state and federal

sentences imposed by the Seventeenth Judicial Circuit Court in and

for Broward County in case number 21-3150 CF10A and the District

Court for the Southern District of Florida in case number 0:21-

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cr-60144-WPD. He pleaded guilty in his federal case to five

counts of Hobbs Act Robbery (18 U.S.C. § 1915(a)) and to three

counts of brandishing a firearm in relation to a crime of violence

(18 U.S.C. § 924(c)(1)(A)(ii)).

2

The Court takes judicial notice of the records and the

filings contained in Petitioner’s prior cases. See Fed. R. Evid.

201; see also Horne v. Potter, 392 F. App’x 800, 802 (11th Cir.

2010) (“The district court properly took judicial notice of the

documents in Horne’s first case, which were public records that

were ‘not subject to reasonable dispute.’”). Burke does not

challenge the state convictions or sentences in this petition.

Burke’s only claim in this petition is that he was convicted

and sentenced under an illegal indictment. (Doc. 1 at 2). He

provides no further explanation or factual details explaining his

entitlement to relief, nor does he explain why he believes the

indictment was illegal. However, the Court will not order Burke

to clarify his claims in an amended petition because doing so would

be futile for two reasons.

First, collateral attacks on the validity of a federal

conviction or sentence typically must be brought under 28 U.S.C.

§ 2255. See Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.

2003). Only challenges to the execution of a sentence—rather than

the validity of the sentence itself—are properly brought under 28

U.S.C. § 2241. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d

1348, 1352 (11th Cir. 2008). Burke’s only claim does not address

the execution of his sentence, only its legality, as he contends

that his convictions and sentences resulted from an illegal

indictment. Therefore, section 2255 is the appropriate statutory

vehicle for Burke’s claims. Burke has already filed and

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prosecuted a section 2255 motion attacking his convictions.

3

Burke filed his first section 2255 motion in Southern

District of Florida case number 0:24-cv-60222-WPD. That motion

was dismissed as time-barred and, in the alternative, denied on

its merits. Thereafter, he filed a successive section 2255 motion

in Southern District of Florida case number 0:24-cv-61438-WPD.

The district court dismissed the second motion for lack of

jurisdiction because Petitioner had not applied for authorization

from the Eleventh Circuit Court of appeals for permission to file

Therefore, he must obtain authorization from the United States

Court of Appeals for the Eleventh Circuit to file a second or

successive motion. See 28 U.S.C. § 2244(b)(3)(A). Burke did not

do this, and the Court cannot review his claim under section 2255

without such authorization.

Next, as long as an indictment “charges the defendant with

violating a valid federal statute as enacted in the United States

Code, it alleges an offense against the laws of the United States

and, thereby, invokes the district court’s subject-matter

jurisdiction.” United States v. Brown, 752 F.3d 1344, 1354 (11th

Cir. 2014) (internal quotation marks omitted). In other words,

“[s]o long as the conduct described in the indictment is a criminal

offense, the mere omission of an element does not vitiate

jurisdiction.” United States v. Moore, 954 F.3d 1322, 1336 (11th

Cir. 2020). Petitioner pleaded guilty to eight counts of the

indictment. Counts 1, 7, 9, 17, and 19 charged him with Hobbs Act

robbery under 18 U.S.C. § 1951(a), which provides that:

Whoever in any way or degree obstructs,

delays, or affects commerce or the movement of

any article or commodity in commerce, by

robbery or extortion or attempts or conspires

so to do, or commits or threatens physical

violence to any person or property in

furtherance of a plan or purpose to do

anything in violation of this section shall be

fined under this title or imprisoned not more

than twenty years, or both.

a second section 2255 motion.

The indictment, which Burke attached to his petition, stated that

Burke used actual and threatened force, violence and fear of injury

to rob employees of several grocery and liquor stores on February

4, 2021, March 26, 2021, March 28, 2021, March 30, 2021, and March

31, 2021. (See Doc. 1 at 5–13 (counts 1, 7, 9, 17, and 19)).

Counts 12, 14, and 16 of the indictment alleged that Burke

brandished a firearm during Hobbs Act robberies on March 28, 2021,

March 29, 2021, and March 30, 2021. (See Doc. 1 at 5–13). Title

18 § 924(c)(1)(A) provides that any person who brandishes a firearm

during a crime of violence is subject to an additional term of

imprisonment of at least seven years.

Thus, Burke’s indictment specifically charged him with

violating valid federal statutes enacted in the United States Code

and described conduct that fell under the statutes. Therefore,

the indictment satisfied the tests established in Brown and Moore

and was not illegal. Burke’s claims are due to be dismissed under

Rule 4. See Benitez v. Warden, FCI Miami, 564 F. App’x 497, 499

(11th Cir. 2014) (affirming dismissal of section 2241 petition

alleging an illegal indictment).

Accordingly, it is ORDERED:

1. Bryan David Burke’s 28 U.S.C § 2241 petition for writ of

habeas corpus is DISMISSED under Rule 4 of the Rules

Governing Section 2254 Cases.

2. Burke is DENIED a certificate of appealability.’

3. The Clerk is DIRECTED to enter judgment, deny any pending

motions as moot, terminate any deadlines, and close this

case,

DONE AND ORDERED in Fort Myers, Florida on September 5th,

2024.

NON Zé AKL

JGHE E. STEELE

Sq IOR UNITED STATES DISTRICT JUDGE

Copies: Bryan David Burke

4 Rule 11 of the Rules Governing Section 2254 Cases in the

United States District Courts provides that “[t]he district court

must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” A certificate of

appealability (“COA”) shall not issue unless “the applicant has

made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253 (c) (2). A substantial showing of the

denial of a constitutional right “includes showing that reasonable

jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)

(internal quotation marks omitted). Here, the Court concludes

that reasonable jurists would not debate the dismissal of this

habeas petition as improperly brought under section and denies a

certificate of appealability.