Davis v. Washington-Aducci

Filing 4

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/27/2017. (KAM, )

FILED
2017 Mar-27 AM 11:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
LATONYA RENEE DAVIS,
Petitioner,
v.

WARDEN WASHINGTON-ADDUCI,
Respondent.

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CIVIL ACTION NO.
7:16-cv-1980-KOB-JEO

MEMORANDUM OPINION
This is a habeas corpus case filed pursuant to 28 U.S.C. § 2241 by Latonya
Renee Davis (“Petitioner” or “Davis”), pro se. (Doc.1 1). Incarcerated at the
Federal Correctional Institution in Aliceville, Alabama, Davis challenges her
conviction and sentence imposed in 2007 by the United States District Court for
the District of South Carolina. On January 26, 2017, the magistrate judge to
whom the case was referred for preliminary proceedings issued a Report and
Recommendation, see 28 U.S.C. § 636(b)(1), recommending that the petition be
dismissed for lack of jurisdiction. (Doc. 3 (“R&R”)). The time for filing

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Citations to “Doc(s) ___” are to the document numbers of the pleadings, motions, and
other materials in the court file as compiled and numbered by the Clerk on the docket sheet in the
court’s Case Management/Electronic Case Files (CM/ECF) system. Unless otherwise noted,
pinpoint citations are to the page of the electronically filed document, which may not correspond
to the pagination on the original “hard copy” presented for filing.

objections to the R&R has now expired, with no objections having been filed.
At the time that the magistrate judge entered his R&R, Eleventh Circuit law
provided that, for this court to have jurisdiction to entertain Davis’s habeas corpus
petition under the savings clause of § 2255(e)2, she had to meet five elements set
forth in Bryant v. Warden, FCC Coleman, 738 F.3d 1253 (11th Cir. 2013), which
were as follows: (1) binding precedent foreclosed a claim at the time of her first
motion to vacate; (2) the Supreme Court overturned our binding precedent that
foreclosed the claim; (3) the new decision of the Supreme Court applies
retroactively on collateral review; (4) as a result of this retroactive decision, the
prisoner’s sentence is now contrary to the law; and (5) this kind of claim can be
brought under the saving clause. Id. at 1274.
The magistrate judge concluded Davis cannot make the required showing
under Bryant for two reasons. First, she cannot show that her total sentence
exceeds the statutory maximum because, even assuming her sentence on two of
the counts was improper, as she asserts, she was also serving a concurrent life
sentence on another count that she was not contesting. (See R&R at 10-11 (citing

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Pursuant to the “savings clause” § 2255(e), a federal court may entertain “an application
for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion
pursuant to [§ 2255],” if it “appears that the remedy by motion is inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. § 2255(e).

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Brown v. Warden, FCC Coleman-Low, 817 F.3d 1278, 1284-85 (11th Cir. 2016)).
And second, the magistrate judge concluded that Davis’s claims do not rely on any
alleged circuit-busting, retroactively applicable Supreme Court decision. (Id. at
11-12).
Since the magistrate judge entered his R&R, the Eleventh Circuit has
recently issued an en banc decision that significantly limits even further the scope
of habeas corpus jurisdiction under the savings clause of § 2255(e). Specifically,
in McCarthan v. Director of Goodwill Indust.-Suncoast, Inc., No. 12-14989, ___
F.3d ___, 2017 WL 977029 (11th Cir. Mar. 14, 2017) (en banc), the Eleventh
Circuit overruled its prior precedents, including Bryant, and held:
A motion to vacate is inadequate or ineffective to test the legality of a
prisoner’s detention only when it cannot remedy a particular kind of
claim. Even if a prisoner’s claim fails under circuit precedent, a
motion to vacate remains an adequate and effective remedy for a
prisoner to raise the claim and attempt to persuade the court to change
its precedent, and failing that, to seek certiorari in the Supreme Court.
McCarthan, ___ F.3d ___, ___, 2017 WL 977029, at *17. Applying that narrow
conception of the savings clause, the Eleventh Circuit thus concluded that the
petitioner in that case could not seek further collateral review by way of a habeas
petition to raise a claim alleging that he was erroneously sentenced under the
ACCA because, in light of a change in Supreme Court caselaw, one of his prior

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convictions could not be counted as a violent felony:
McCarthan does not qualify for the saving clause because his claim
that escape is not a violent felony is cognizable under section 2255.
Because he “was free to bring” this claim about the interpretation of
his sentencing law in his initial motion to vacate, the remedy by
motion was an “adequate and effective means for testing such an
argument.” Prost [v. Anderson, 636 F.3d 578, 580 (10th Cir. 2011)].
He cannot now use the saving clause to make that claim in a petition
for a writ of habeas corpus.
Id.
Under the Eleventh Circuit’s recent en banc decision in McCarthan, this
court lacks jurisdiction to hear Davis’s habeas corpus petition pursuant to the
savings clause of § 2255(e) because her claims attack her conviction and/or
sentence and she was free to bring them in a § 2255 proceeding. Moreover, even
under pre-McCarthan circuit law, this court lacked jurisdiction for the reasons
explained by the magistrate judge’s R&R. Having carefully reviewed and
considered de novo all the materials in the court file, including the magistrate
judge’s report and recommendation, the court is of the opinion that the magistrate
judge’s findings are due to be and are hereby ADOPTED and his recommendation
is ACCEPTED. Accordingly, Davis’s petition for a writ of habeas corpus is due
to be DISMISSED for want of jurisdiction. The court will enter a separate Final

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Order.
DONE, this 27th day of March, 2017.

__________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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