MCHENRY v. ENGLISH

Filing 21

ORDER OF DISMISSAL re accepting 19 Report and Recommendation. The clerk must enter judgment stating, "The petition is dismissed for lack of jurisdiction." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 3/28/2018. (jcw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

CALVIN B. MCHENRY,
Petitioner,
v.

CASE NO. 5:14cv332-RH/CJK

NICOLE ENGLISH, Warden,
FCI Marianna,
Respondent.
_____________________________/

ORDER OF DISMISSAL

By petition for writ of habeas corpus under 28 U.S.C. § 2241, Calvin B.
McHenry challenges his armed-career-criminal conviction in the Southern District
of Georgia. The petition is before the court on the magistrate judge’s report and
recommendation ECF No. 19, which concludes that the petition should be denied.
No objections have been filed. This order accepts the report and recommendation
and adopts it as the court’s opinion, with this additional note.
Mr. McHenry pleaded guilty in the Southern District to possessing a firearm
as a convicted felon. He had three prior convictions that were deemed to be violent
felonies under the armed career criminal act, 18 U.S.C. § 924(e). Because of this,

Case No. 5:14cv332-RH/CJK

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the minimum sentence was 15 years in prison. The court sentenced Mr. McHenry
to 220 months, well in excess of the minimum.
Mr. McHenry unsuccessfully challenged the sentence on direct appeal and
by motion in the Southern District under 28 U.S.C. § 2255. He now seeks relief in
this court under § 2241, asserting that the § 2255 remedy is inadequate or
ineffective within the meaning of the § 2255 savings clause. As correctly set out in
the report and recommendation, Mr. McHenry cannot properly proceed under
§ 2241.
That result sometimes is harsh. Not so much here. Mr. McHenry could have
applied to the United States Court of Appeals for the Eleventh Circuit for
authorization to file a second § 2255 motion in the Southern District of Georgia
based on Johnson v. United States, 135 S. Ct. 2551 (2015), which held
unconstitutionally vague the § 924(e) “residual clause,” and Welch v. United
States, 136 S. Ct. 1257 (2016), which held Johnson retroactively applicable on
collateral review. Far from inadequate or ineffective, § 2255 provided an avenue
for relief—if warranted—in circumstances like those alleged by Mr. McHenry. But
Mr. McHenry cannot proceed in this court or under § 2241.
For these reasons and those set out in the report and recommendation,
IT IS ORDERED:

Case No. 5:14cv332-RH/CJK

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The report and recommendation is accepted. The clerk must enter judgment
stating, “The petition is dismissed for lack of jurisdiction.” The clerk must close
the file.
SO ORDERED on March 28, 2018.
s/Robert L. Hinkle
United States District Judge

Case No. 5:14cv332-RH/CJK