Hearing v. Keller
Filing
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OPINION and ORDER adopting as modified 5 Final Report and Recommendation. Petitioners objections to the Final Report and Recommendation are overruled and his Petition 1 is DISMISSED. Signed by Judge William S. Duffey, Jr. on 12/22/2011. (rvb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
EARNEST OLIVER HEARING,
JR.,
BOP No. 45890-019,
Petitioner,
v.
1:11-cv-2659-WSD
J. A. KELLER, Warden,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation (“R&R”) [5], which recommends the dismissal
of Earnest Oliver Hearing’s (“Petitioner”) Petition for Writ of Habeas Corpus by a
Person in Federal Custody under 28 U.S.C. § 2241 (“Petition”) [1]. Petitioner has
filed an objection to the R&R.
I.
BACKGROUND1
On July 30, 2004, Petitioner was arrested in Clayton County, State of
Georgia, and charged with possession of marijuana and possession of a firearm by
a felon. After being released on bond, Petitioner was arrested again on August 16,
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The parties have not objected to the facts set out in the R&R, and finding no plain
error, the Court adopts them.
2004, and charged by state authorities with possession of methamphetamine with
intent to distribute, theft by receiving stolen property, and possession of a firearm
during the commission of a felony.
On February 7, 2005, Petitioner was sentenced to a twelve-year term of
imprisonment after pleading guilty in the Superior Court of Henry County to
possession of methamphetamine with intent to distribute and possession of a
firearm during the commission of a felony.
On April 13, 2005, Petitioner was sentenced to a three-year term of
imprisonment after pleading guilty in the Superior Court of Clayton County to
possession of marijuana and possession of a firearm by a felon.
On December 13, 2005, Petitioner was indicted by a federal grand jury in the
Northern District of Georgia for offenses that were committed between on or about
July 30, and August 16, 2004.
On February 2, 2006, Petitioner was taken into federal custody by the United
States Marshals Service (“USMS”) pursuant to a federal writ of ad prosequendum.
On May 9, 2006, Petitioner pled guilty in the United States District Court for
the Northern District of Georgia to possession of marijuana with intent to distribute
and possession of an unregistered silencer. On August 15, 2006, Petitioner was
sentenced to a 180-month term of imprisonment. The sentencing court did not
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order concurrent service of the federal sentence with the state sentence and made
no recommendation to the Bureau of Prisons (“BOP”) concerning the place of
confinement.
On October 31, 2006, the USMS returned Petitioner to the custody of the
State of Georgia and a federal detainer was lodged against him.
On November 8, 2007, the Eleventh Circuit Court of Appeals denied
Petitioner’s direct appeal. United States v. Hearing, 253 F. App’x 874 (11th Cir.
2007). On appeal, Petitioner argued that the sentencing court erred by failing to
order that his federal sentence be served concurrently with his state sentence. Id. at
875. The Eleventh Circuit affirmed his sentence and held that, even though the
sentencing court erred in failing to sua sponte consider § 5G1.3 of the United
States Sentencing Guidelines, Petitioner “failed to carry his burden of proving that
there is a reasonable probability of a different result” had the error not occurred.
See id. at 876-77.
On August 21, 2008, Petitioner was paroled by the State of Georgia and
again taken into federal custody by the USMS. The BOP calculated Petitioner’s
federal sentence as beginning on that date with no credit for prior custody.
On February 12, 2009, Petitioner filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. (Ex. 1 to Resp’t’s Answer and Resp. in Opp’n to
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Pet. for Habeas Corpus at 77). On June 25, 2009, Petitioner’s § 2255 motion was
denied. (Id. at 84).
On November 8, 2011, the Magistrate Judge issued his Final R&R in this
case and recommended that the § 2241 petition be dismissed. The Magistrate
Judge concluded that the BOP correctly calculated petitioner’s release date in
accordance with relevant federal statutes and BOP Program Statements, and that
petitioner failed to state a claim for § 2241 relief. (R&R at 7). The Magistrate
Judge did not address whether the Court had the authority to address the merits of
the § 2241 petition.
On November 18, 2011, Petitioner filed his objections to the Final R&R and
generally asserts that the Magistrate Judge erred by concluding that he was not
entitled to have the time spent in state custody credited to his federal sentence.
Petitioner also claims that the Magistrate Judge’s conclusion that the BOP
calculation is correct creates a miscarriage of justice affecting his substantive due
process rights under the 5th and 14th Amendments of the United States
Constitution.
On December 9, 2011, Respondent filed his response to Petitioner’s
objections. Respondent claims that the Magistrate Judge did not err in the R&R
and Petitioner is not entitled to any relief on the merits of his claim. Respondent
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also claims that Petitioner has not met his burden to seek habeas relief through a
§ 2241 petition using § 2255(e)’s savings clause.
II.
DISCUSSION
A.
Standard of Review on Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). This requires that the district judge “‘give fresh
consideration to those issues to which specific objection has been made by a
party.’” Jeffrey S. by Ernest S. v. State Board of Educ. of Ga., 896 F.2d 507, 512
(11th Cir. 1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2d Sess. (1976)).
With respect to those findings and recommendations to which a party has not
asserted objections, the Court must conduct a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S.
1050 (1984).
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B.
The Savings Clause of 28 U.S.C. § 2255
Federal prisoners seeking to “to vacate, set aside or correct” their sentence
must do so by filing a motion with the court that imposed the sentence. 28 U.S.C.
§ 2255(a). They ordinarily must do so within one year of the date on which their
conviction becomes final. Id. § 2255(f). They are prohibited from filing second or
successive motions except in rare circumstances. Id. § 2255(h). Because
Petitioner’s previous § 2255 motion was denied by “the court which imposed [his]
sentence,” Petitioner may not file a second or successive motion without first
receiving permission from the appropriate United States Court of Appeals, which
Petitioner has failed to do. See 28 U.S.C. § 2255(h); Darby v. Hawk-Sawyer, 405
F.3d 942, 945 (11th Cir. 2005) (“[w]hen a prisoner has previously filed a § 2255
motion to vacate, he must apply for and receive permission . . . before filing a
successive § 2255 motion”).
Because Petitioner is barred from filing this motion under § 2255, he filed
his petition for habeas corpus pursuant to 28 U.S.C. § 2241. But § 2255(e)
expressly limits the circumstances under which a federal prisoner may file such a
petition. Under § 2255(e), a federal habeas petition “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 denied him relief.” An exception to
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§ 2255(e), known as the “savings clause,” permits § 2241 petitions where it
“appears that the remedy by motion is inadequate or ineffective to test the legality
of his detention.” Id. § 2255(e).
In order to bring a § 2241 petition, a petitioner must show that an otherwise
available remedy under § 2255 is “inadequate or ineffective to test the legality of
his detention.” Wofford v. Scott, 177 F.3d 1236, 1238 (11th Cir. 1999). Petitioner
has the burden of coming forward with evidence affirmatively showing the
inadequacy or ineffectiveness of a motion brought under § 2255. Gaines v.
Warden, FCC Coleman-USP-1, 380 F. App’x 812, 814 (11th Cir. 2010) (citing
McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)).
To show that a motion brought under § 2255 would be inadequate or
ineffective and that a § 2241 petition may be brought using the savings clause, the
Eleventh Circuit has held:
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 was
convicted for a nonexistent offense; and 3) circuit law squarely
foreclosed such a claim at the time it otherwise should have been
raised in the petitioner’s trial, appeal, or first § 2255 motion.
Wofford, 177 F.3d at 1244. All three Wofford requirements must be met to utilize
the savings clause to seek habeas relief. Id.; see also Dean v. MacFadden, 133 F.
App’x 640, 642 (11th Cir. 2005).
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Under these requirements, the only sentencing claims in the Eleventh Circuit
“that may conceivably be covered by the savings clause are those based upon a
retroactively applicable Supreme Court decision overturning circuit precedent.”
Wofford, 177 F.3d at 1245; see Gilbert v. United States, 640 F.3d 1293, 1323 (11th
Cir. 2011) (en banc) (“the savings clause does not authorize a federal 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”); Edwards v. Warden, FCC
Coleman-Medium, 432 F. App’x 897, 899 (11th Cir. 2011) (“There is no precedent
in this circuit for applying the savings clause to sentence claims.”).
Under the circumstances of the instant case, Petitioner is barred from
bringing his petition under § 2241 and it must be dismissed because: (1) assuming
circuit law foreclosed his present claims at trial or at the time of his first § 2255
petition, Petitioner has not shown that his claims are based on a retroactively
applicable Supreme Court decision or that he “was convicted for a nonexistent
offense;” and (2) the fundamental miscarriage of justice exception is not available
to him.
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C.
Analysis
1.
Petitioner cannot establish the Wofford requirements
Assuming the law of the Eleventh Circuit “squarely foreclosed such [his
claims] at the time [they] otherwise should have been raised in the petitioner’s
trial, appeal, or first § 2255 motion,” Petitioner has failed to demonstrate that his
claims are based on a retroactively applicable Supreme Court decision or that he
was convicted for a nonexistent offense. Wofford, 177 F.3d at 1244.
In Petitioner’s § 2241 petition and objections to the Final R&R, he does not
discuss or cite to any retroactively applicable Supreme Court decision in support of
his claims. The Court finds that Petitioner has failed to establish the Wofford
requirement that his claims be “based upon a retroactively applicable Supreme
Court decision.” Id.
“To prove an offense is non-existent, a petitioner must show he was
imprisoned for conduct that was not prohibited.” Darby, 405 F.3d at 945 (citing
Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003)). Petitioner was
imprisoned for the federal drug and firearm offenses of which he was convicted,
and there has been no intervening change in the law that made any of those
offenses nonexistent. The Court finds that Petitioner has also failed to establish
that he “was convicted for a nonexistent offense.” Wofford, 177 F.3d at 1244.
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The Court finds that his § 2241 petition must be dismissed because
Petitioner has failed to carry his burden to establish the three Wofford
requirements and has failed to show that a motion brought under § 2255 would be
inadequate or ineffective. Id.
2.
Fundamental miscarriage of justice exception
Even though Petitioner cannot satisfy the Wofford requirements, Petitioner
argues that the conclusion of the Magistrate Judge that the BOP calculation is
correct creates a miscarriage of justice affecting his substantive due process rights
under the 5th and 14th Amendments of the United States Constitution. In light of
Petitioner’s pro se status and his constitutional claim, the Court will liberally
construe his argument as seeking habeas relief under the fundamental miscarriage
of justice exception to the bar on successive habeas claims. See Murray v. Carrier,
477 U.S. 478, 496 (1986) (“where a constitutional violation has probably resulted
in the conviction of one who is actually innocent, a federal habeas court may grant
the writ even in the absence of showing of cause for the procedural default”).
“The fundamental miscarriage of justice exception is available ‘only where
the prisoner supplements [a] constitutional claim with a colorable showing of
factual innocence.” See Herrera v. Collins, 506 U.S. 390, 404 (1993). In the
Eleventh Circuit, the miscarriage of justice exception does not apply to sentencing
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miscalculation claims and requires a claim of factual innocence to be invoked. See
Herrera, 506 U.S. at 404; Gilbert, 640 F.3d at 1322-23. The Eleventh Circuit has
further held that the exception is narrow and only applies to the extraordinary case.
See McKay v. United States, 657 F.3d 1190, 1199 (11th Cir. 2011); see also Davis,
222 F. App’x at 927 (citing Wofford, 177 F.3d at 1244 n.3) (failure to establish
applicability of savings clause can preclude consideration of whether petitioner is
actually innocent).
Because Petitioner does not argue that he is innocent of any crime for which
he is serving his sentence and only makes a legal argument that the manner in
which the BOP calculated his sentence is incorrect, the Court finds that the
miscarriage of justice exception for actual innocence is unavailable to him and his
§ 2241 petition is required to be dismissed on this additional ground. See McKay,
657 F.3d at 1199; Gilbert, 640 F.3d at 1322-23.
In sum, Petitioner cannot demonstrate that relief under § 2255 would be
inadequate or ineffective so as to warrant consideration of his § 2241 petition
under the savings clause because Petitioner fails to satisfy the Wofford
requirements to bring a § 2241 petition using the savings clause and the
fundamental miscarriage of justice exception does not apply to his case.
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s
Final R&R [5] is ADOPTED AS MODIFIED. Petitioner’s objections to the Final
R&R are OVERRULED and his Petition [1] is DISMISSED.
SO ORDERED this 22nd day of December, 2011.
_________________________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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