Magby v. Reese

Filing 7

MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/25/2013. (AVC)

FILED
2013 Feb-25 AM 11:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ROY LEE MAGBY,
Petitioner,
v.
CONSTANCE REESE, WARDEN,
FCI TALLADEGA
Respondent.

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Case No.: 2:09-cv-2532-RDP-PWG

MEMORANDUM OPINION
Before the court is a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241
by Petitioner Roy Lee Magby, a federal prisoner acting pro se. (Doc. #1). Petitioner requests that
the court adjust his sentence on the ground that he was "actually innocent of the Career Offender
enhancement." (Doc. #1 at 2). However, regardless of the merits of the claim, the court has
carefully examined the facts of the claim and finds that it cannot hear this case because it lacks
jurisdiction. Therefore, the motion is due to be denied without prejudice.
I. Background
On December 2, 2005, Petitioner pled guilty to violations of 21 U.S.C. §§841(a) and
841(b)(1)(iii) (possession with intent to distribute and distribution of "crack" cocaine) in the
Northern District of Georgia. (Doc. #1 at 7). On February 22, 2006, the Northern District of
Georgia sentenced Petitioner to 240 months in prison, the statutory-mandated minimum sentence.
(Id.). Petitioner appealed the sentence and the Eleventh Circuit affirmed the conviction on April 16,
2008. United States v. Roy Lee Magby, 264 Fed. Appx. 857, 857 (11th Cir. 2008), cert denied, 129
S. Ct. 121, 121 (October 6, 2008).

Petitioner states in his Motion that, prior to filing this action, "[Petitioner] filed a motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 on February 16, 2007." (Doc. #1 at 1). That
motion was denied. (Doc. #1 at 2); Roy Lee Magby v. United States of America, 1:05-cv-96-ODE
(N.D. Ga. November 19, 2009).
Petitioner was subsequently incarcerated at the Federal Correctional Institution in Talladega,
Alabama. Because Talladega, Alabama lies within the Northern District of Alabama, Petitioner filed
the instant Section 2241 Motion in this court. (Doc. #1 at 1).
II. Discussion
Typically, collateral attacks on the validity of a federal sentence must be brought under 28
U.S.C. § 2255 in the court in which the petitioner was sentenced. United States v. Jordan, 915 F.2d
622, 629 (11th Cir. 1990). Furthermore, a federal prisoner who has previously filed a § 2255 motion
must first apply for and receive permission from the relevant United States court of appeals before
filing a second or successive § 2255 motion. 28 U.S.C. § 2255(h); In re Blackshire, 98 F.3d 1293,
1293 (11th Cir. 1996). Absent an order from the court of appeals authorizing the consideration of
the application, "the district court lacks jurisdiction to consider a second or successive petition."
Farris v. United States, 333 F. 3d 1211, 1216 (11th Cir. 2003); see also United States v. Holt, 417
F.3d 1172, 1175 (11th Cir. 2005).
It is uncontested that Petitioner was sentenced in the Northern District of Georgia, not the
Northern District of Alabama. (Doc. #1 at 6-7); see also United States v. Roy Lee Magby, 264 Fed.
Appx. 857, 857 (11th Cir. 2008). Petitioner also admits that he has already filed a previous § 2255
motion and has not shown that he has received permission from the Eleventh Circuit to file a
successive § 2255 motion. (Doc. #1 at 1). However, Petitioner submits that a successive § 2255
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motion is not the only remedy available to him because the "savings clause" of 28 U.S.C. § 2255
allows him to file this Motion pursuant to 28 U.S.C. § 2241, which allowed federal prisoners to
pursue habeas relief in the federal district court in the jurisdiction of incarceration before the
enactment of 28 U.S.C. § 2255 . (Doc. #1 at 3).
The relevant language of 28 U.S.C. § 2255 provides that:
An application for a writ of habeas corpus in behalf of a prisoner who
is authorized to apply for relief by motion pursuant to this section,
shall not be entertained if it appears that the applicant has failed to
apply for relief, by motion, to the court which sentenced him, or that
such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of
his detention.
28 U.S.C. § 2255(e). Petitioner focuses on the last clause of this subsection and presents two
arguments as to why a subsequent § 2255 motion would be inadequate or ineffective. First,
Petitioner alleges that he was never afforded a "reasonable opportunity to obtain a reliable judicial
determination of the fundamental legality of his sentence . . . because he was unable to obtain a
reversal of [the sentencing court's use of his] prior convictions used to enhance [his sentence]" when
he filed his previous § 2255 motion. (Doc. #1 at 4). Second, Petitioner argues that "[b]ecause the
language of § 2255 and 2244 both require that any "newly discovered evidence" show innocence of
the "offense" and not just the sentencing enhancement, it is inadequate and ineffective to test the
legality of his sentence." Therefore, in order the resolve the threshold question of whether this court
has jurisdiction to hear Petitioner's claim, the court must first address whether 28 U.S.C. § 2255(e)
allows a federal prisoner to file a § 2241 motion in lieu of a subsequent § 2255 motion when the
prisoner's previous § 2255 motion was unsuccessful and the prisoner does not allege that he is

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actually innocent of the crime, but that the sentence was miscalculated. The law of the Eleventh
Circuit is clear – a federal prisoner may not.
The sole purpose of § 2255 is "to minimize the difficulties encountered in habeas corpus
hearings by affording the same rights in another and more convenient forum." United States v.
Hayman, 342 U.S. 205, 219 (1952). The particular difficulties that § 2255 was enacted to minimize
were "'serious administrative problems' resulting from the requirement that those proceedings be
brought and decided in the district of incarceration." Wofford v. Scott, 177 F.3d 1236, 1239 (11th
Cir. 1999) (citing Hayman, 342 U.S. at 210-19). Before the enactment of § 2255, habeas
proceedings occurred in the district in which a federal prisoner was incarcerated rather than the
district in which the prisoner was sentenced, notwithstanding that the relevant records and witnesses
were in the latter judicial district. Id. The enactment of § 2255 addressed this administrative
problem "by substituting for [traditional habeas] in federal prisoner collateral attack cases a remedy
in the sentencing court." Id. In other words, "[t]he purpose of § 2255 was to . . . provide an
expeditious remedy in the sentencing court without resort to habeas corpus." Hayman, 342 U.S. at
218 (emphasis added).
Because Congress has shown a clear preference for § 2255 as the proper vehicle through
which a federal prisoner may challenge his conviction, the courts have declined to read the savings
clause in § 2255(e) so broadly as to effectively nullify the limitations imposed by § 2255. Wofford,
177 F.3d at 1244. The Eleventh Circuit in Wofford v. Scott articulated the narrow circumstance
under which a federal prisoner in this jurisdiction may invoke the savings clause in § 2255(e):
The savings clause of § 2255 applies to a claim when: 1) that claim
is based upon a retroactively applicable Supreme Court decision; 2)
the holding of that Supreme Court decision establishes the petitioner
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was convicted for a nonexistent offense; and 3) circuit law squarely
forecloses such a claim at the time it otherwise should have been
raised in the petitioner's trial, appeal, or first § 2255 motion.
177 F.3d at 1244.
Petitioner has not cited a retroactively applicable Supreme Court decision that establishes that
the offenses underlying Petitioner's conviction (possession with intent to distribute and distribution
of "crack" cocaine) were nonexistent offences, or that circuit law squarely foreclosed Petitioner from
raising – at trial, on appeal, or during first § 2255 motion – any of the claims he now alleges. (See
Doc. #1). Instead, the arguments he raises now have already been presented before the Eleventh
Circuit and were found without merit.
Petitioner's first argument is that a subsequent § 2255 motion would be inadequate or
ineffective "because he was unable to obtain a reversal of [the sentencing court's use of his] prior
convictions" when he filed his previous § 2255 motion. (Doc. #1 at 4). This argument simply does
not hold water. It is well-recognized in this jurisdiction that "a petitioner who has filed and been
denied a previous § 2255 motion may not circumvent the successive motion restrictions simply by
filing a petition under § 2241." Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11th Cir. 2005). Merely
receiving an unfavorable decision does not mean that the process is inadequate or ineffective; if that
were the case, virtually every legal remedy would be inadequate or ineffective because almost every
judgment results in an unfavorable decision for at least one of the parties.
Petitioner's second argument asserts that § 2255 provides an inadequate or ineffective remedy
because it can only be used to challenge the validity of his conviction and not to re-calculate his
sentence. (Doc. #1 at 4). This argument also misses the mark. The Eleventh Circuit has recently
heard this argument and decided en banc that "the savings clause does not authorize a federal
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prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by § 2255(h), that
the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding
the statutory maximum. Gilbert v. U.S., 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc).
It is worth noting that the third element of the standard articulated in Wofford bars a petitioner
from exercising the savings clause if the petitioner had "an unobstructed procedural shot" at raising
his claim at trial, on appeal, or during his first § 2255 motion. 177 F.3d at 1244. This "does not
mean that [the petitioner] took the shot, or even that he or his attorney recognized that the shot was
there for the taking." Id. All the Constitution requires "is that the procedural opportunity have
existed." Id. Petitioner had the opportunity to challenge the sentencing calculations when he
appealed his conviction in 2006. Petitioner's counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), finding no arguable issue of merit, a finding with which the Eleventh Circuit
agreed. 264 Fed.Appx. at 857. Petitioner may not use § 2255 as a substitute for a direct appeal. See
e.g., United States v. Frady, 456 U.S. 152, 165 (1982). Likewise, he may not use a § 2241 petition
as a substitute for a subsequent § 2255 motion.
Because § 2255(e) does not allow Petitioner to use § 2241 as a substitute vehicle to pursue
what is in substance a subsequent § 2255 motion that should have been filed in the Northern District
of Georgia (after receiving permission from the Eleventh Circuit within the statute of limitations),
this court lacks jurisdiction to hear this claim. Therefore, Petitioner's Motion is due to be dismissed
without prejudice. A separate order will be entered in accordance with the terms of this
memorandum decision.

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DONE and ORDERED this

25th

day of February, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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