Streater v. Keller
Filing
15
OPINION AND ORDER ADOPTING the 11 Final Report and Recommendation, GRANTING the 9 Motion to Dismiss and GRANTING 14 Motion to Supplement. IT IS FURTHER ORDERED that Plaintiff Lloyd Streaters Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241(C)(3) is DENIED. Signed by Judge William S. Duffey, Jr on 8/19/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LLOYD STREATER,
Plaintiff,
v.
1:12-cv-03007-WSD
J.A. KELLER, Warden,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff Lloyd Streater’s (“Plaintiff” or
“Streater”) Objections [13] to Magistrate Judge Justin S. Anand’s (the “Magistrate
Judge”) Final Order and Report and Recommendation (“R&R”) [11]. The R&R
recommends that the Court (1) grant Defendant J.A. Keller’s (“Keller” or
“Defendant”) Motion to Dismiss with Supporting Memorandum and Response in
Opposition to Petition for Writ of Habeas Corpus, filed on December 26, 2012 (the
“Motion to Dismiss”) [9], and (2) deny Plaintiff Lloyd Streater’s Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. 2241(C)(3), filed on August 28, 2012 (the
“Habeas Petition”) [1].1
1
On June 14, 2013, Plaintiff filed his Motion to Supplement Objections to the
Magistrate’s R&R [14]. The Court grants the motion and considers the
supplemental material.
I.
BACKGROUND
Plaintiff, a federal prisoner presently confined at the United States
Penitentiary in Atlanta, Georgia, seeks habeas relief under 28 U.S.C. § 2241 to
challenge the validity of his convictions and sentences in the United States District
Court for the District of Connecticut.
A.
The Underlying Facts
On December 17, 1999, a jury in the District of Connecticut found Petitioner
guilty of conspiracy to possess with the intent to distribute cocaine and cocaine
base, in violation of 21 U.S.C. § 846, and two counts of possession of cocaine with
the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). [8-3, at 3].
On May 26, 2000, Plaintiff was sentenced to 480 months imprisonment,
followed by five years of supervised release. [8-1]. In determining the sentence,
the trial court interpreted the sentencing guidelines, including by estimating the
volume of cocaine involved in the offense. The estimate was based on sales of half
a kilogram a week, for a total of 26 kilograms a year of cocaine sold, totaling
approximately 200 kilograms of cocaine, which was attributed to Streater under the
guidelines. [8-3, 4-5].
Plaintiff filed a direct appeal, including his objections at sentencing based on
the judge’s findings of the drug quantity. Plaintiff argued that the sentencing
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judge’s findings on quantity violated his constitutional right to have this
sentencing-guideline enhancement factor determined by a jury, which he argued
was required by Apprendi v. New Jersey, 530 U.S. 466 (2000). [8-3, 5-6]. On
May 30, 2002, the Second Circuit rejected Plaintiff’s argument, affirming his
conviction and sentence. [11, at 2].
Plaintiff filed his habeas action in the District of Connecticut, seeking relief
under 28 U.S.C. § 2255. He argued that his sentence violated his Sixth
Amendment right to confrontation under United States v. Crawford, 541 U.S. 36
(2004) and his right, under United States v. Booker, 543 U.S. 220 (2005), to a have
the jury determine the drug-quantity enhancement factor under a “beyond a
reasonable doubt” standard.2 [8-4, at 1].
On July 20, 2006, the District Court for the District of Connecticut denied
Plaintiff’s § 2255 petition on the basis that, under Second Circuit precedents,
neither Crawford nor Booker applied retroactively to Plaintiff’s claims. [Id. at 1].
On August 22, 2012, Plaintiff filed this action under 28 U.S.C. § 2241. In it,
he reiterates the arguments he made on direct appeal and in his § 2255 petition.
2
Plaintiff argues that Booker “reiterates” Apprendi’s rule that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
[8-3, at 11].
3
[8-3, at 6-12]. Acknowledging that under § 2244(a), “[n]o circuit or district judge
shall be required to entertain an application for a writ of habeas corpus . . . if it
appears that the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus, except as
provided in section 2255[,]”3 Plaintiff appears to argue that he is “actually
innocent” of his sentence because an improper quantity of cocaine was attributed
to him by the sentencing judge and thus the sentence is invalid. [10, at 3-4].
Plaintiff appears to argue that § 2255(e)’s “savings clause” allows his successive
habeas petition.
On December 26, 2012, Defendant filed his Motion to Dismiss [9], arguing
that the Court lacks jurisdiction because Plaintiff had “previously raised [the] same
challenge[s] in a collateral attack . . . under 28 U.S.C. § 2255 before the sentencing
court.” [9, at 3]. Defendant argues that Plaintiff does not qualify for the “savings
clause” under § 2255(e), which confers jurisdiction in a successive habeas petition,
on the grounds that Plaintiff’s claims are “not based upon a retroactively applicable
3
Section 2255(e) states that “[a]n application for a writ of habeas corpus . . . shall
not be entertained if it appears that . . . the court which sentenced him . . . has
denied him relief, unless it also appears that the remedy [provided by the
sentencing court] is inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e). The exception in this section is often called the “savings
clause.”
4
Supreme Court decision,” and that Plaintiff “had an adequate opportunity to test
the legality of his sentence through the prior § 2255 petition.” [Id. at 5-6].
On May 14, 2013, the Magistrate Judge issued his R&R recommending that
Defendant’s Motion to Dismiss be granted. The Magistrate Judge found that
Plaintiff “could, and did, raise the claims he attempts to raise here in a previous
§ 2255 motion,” and concluded that Plaintiff was not entitled to maintain a § 2241
habeas petition under the savings clause of § 2255(e). [11, at 9].
B.
Plaintiff’s Objections to the Magistrate Judge’s Findings and
Recommendations
On May 24, 2013, Plaintiff filed his Objections. In them, Plaintiff makes
two arguments why his habeas petition should be granted. First, he argues that
Plaintiff is entitled to maintain this habeas petition under the savings clause of
§ 2255(e) because “the Eleventh Circuit decisions concerning [the savings clause]
are inconsistent.” Plaintiff asserts that the burden of proof is on the Government
and the Magistrate Judge to show, “[i]n light of no pre-existing precedent stating
that [the savings clause] may not apply,” that Plaintiff does not actually qualify for
the savings clause. [13, at 2, 4].
Plaintiff next argues that he qualifies for the savings clause because he is
actually innocent of the sentence. Relying on Gilbert v. United States, 640 F.3d
1293 (11th Cir. 2011) (en banc), and Begay v. United States, 553 U.S. 137 (11th
5
Cir. 2008), Plaintiff argues that because the guidelines were inaccurately
calculated, he is “actually innocent” of the sentence, and that actual innocence is a
sufficient condition to invoke the savings clause. [13, at 3-5].
II.
DISCUSSION
A.
Legal Standard
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) (2006); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). 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). In the absence of objections, the Court reviews the Magistrate Judge’s
findings and recommendations for plain error. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983) (per curiam).4
B.
Analysis
1.
Plaintiff’s First Objection
Plaintiff argues that he qualifies for relief under the § 2255(e) savings clause
4
There are no objections to the facts set out in the R&R. Finding no plain error in
the facts, the Court adopts the facts in the R&R.
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because the Government and the Magistrate Judge did not show he does not
qualify. According to Plaintiff, the burden is on the Government and the
Magistrate Judge to prove that Plaintiff does not qualify for the savings clause.
[13, at 1-2, 4].
Plaintiff relies on Gilbert to support his contention that the Eleventh Circuit
precedents on the savings clause are unclear or “inconsistent.” Before Gilbert, the
well-settled rule in the Eleventh Circuit was that the savings clause under 28
U.S.C. § 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
v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); see Williams v. Warden, 713 F.3d
1332, 1342-43 (11th Cir. 2013); Gilbert, 640 F.3d at 1319. Plaintiff does not claim
that a retroactively applicable decision of the Supreme Court established that
Plaintiff was convicted of a non-existent offense.5
5
In Gilbert, the Eleventh Circuit, in its discussion of the “actual innocence”
exception under 28 U.S.C. § 2255(h)(1), stated that the “actual holding of the
Wofford decision, which is undoubtedly correct, is simply that the savings clause
does not cover sentence claims that could have been raised in earlier proceedings.”
Gilbert, 640 F.3d at 1319. Eleventh Circuit cases after Gilbert continue to apply
7
Plaintiff had the opportunity to, and did, make the arguments he makes here
to the Court of Appeals for the Second Circuit in his direct appeal and to the
District Court for the District of Connecticut in his § 2255 habeas petition. The
two courts, on both occasions, rejected the arguments Plaintiff makes again in this
action. See [8-4] [11, at 2] [8-3, 5-6]. Plaintiff does not qualify for the savings
clause under Gilbert, and Plaintiff’s first objection is overruled.
2.
Plaintiff’s Second Objection
Plaintiff’s second objection is that he is entitled to maintain this § 2241
habeas petition because he is “actually innocent of the sentence.” [13, at 3-5].
In Gilbert, the Eleventh Circuit discussed the “actual innocence” exception
to the general rule in § 2255(h) that bars successive filings of § 2255 habeas
petitions.6 The court held in Gilbert that “the savings clause [under 28 U.S.C.
§ 2255(e)] does not authorize a federal prisoner to bring in a § 2241 petition a
the Wofford test. See Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328,
1333-34 (11th Cir. 2013); Marshall v. United States, No. 12-13841, 2013 WL
1235549, at 1 n.3 (11th Cir. Mar. 28, 2013); Williams, 713 F.3d at 1342-43.
Without deciding whether Gilbert in fact disturbed Wofford’s well-settled standard
for whether the savings clause applies, the Court finds that, even under Gilbert’s
reading of Wofford, Plaintiff still does not qualify for the savings clause.
6
§ 2255(h) bars successive filings of § 2255 habeas petitions absent “new
evidence” that is exculpating or “new constitutional law” that is retroactive in a
collateral review.
8
claim [that] would otherwise be barred by § 2255(h), [when] the sentencing
guidelines were misapplied in a way that resulted in a longer sentence not
exceeding the statutory maximum.” Gilbert does not support that the savings
clause applies.
Plaintiff next argues that Begay supports a finding of actual innocence in
this case. In Begay, the Supreme Court considered whether the crime of driving
under influence was a “violent felony” that implicated an enhanced mandatory
minimum sentence based on the defendant’s having three prior convictions “for a
violent felony.” Applying the rule of lenity in its statutory construction, the
Supreme Court held that the DUI offense was not a violent felony. See Begay, 553
U.S. at 143. Begay does not apply to Plaintiff’s claim that he is “actually
innocent” of his “sentence.” Since §2255(e) is jurisdictional, and this action
constitutes a successive habeas petition not within the savings clause, Plaintiff’s
second objection is required to be overruled. See Williams, 713 F.3d at 1340.
III.
CONCLUSION
Having conducted its de novo review of Plaintiff’s objections and, finding
no plain error in any portion of the R&R to which Plaintiff did not object,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Supplement [14] is
GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s Objections [13] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Justin S. Anand’s
Final Order and Report and Recommendation [11] is ADOPTED.
IT IS FURTHER ORDERED that Defendant J.A. Keller’s Motion to
Dismiss with Supporting Memorandum and Response in Opposition to Petition for
Writ of Habeas Corpus [9] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Lloyd Streater’s Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241(C)(3) [1] is DENIED.
SO ORDERED this 19th day of August, 2013.
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