Greene v. Dean
Filing
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OPINION AND ORDER ADOPTING the 4 Final Report and Recommendation. IT IS FURTHER ORDERED that Plaintiff's habeas corpus petition is DISMISSED. Signed by Judge William S. Duffey, Jr on 11/20/2014. (anc)
1274 (11th Cir. 2013). Plaintiff argues that the Supreme Court’s decision in
Alleyne v. United States, 133 S.Ct. 2151 (2013), requires that his 360-month
sentences be reduced because a jury did not find beyond a reasonable doubt the
drug quantity for which he was responsible, and thus his guidelines range should
have been substantially lower than the 10-30 year range determined by the District
Court which sentenced him. Plaintiff admits that this argument, which was
initially raised under Apprendi v. New Jersey, 530 U.S. 466 (2000), was not
successful in his direct appeal or in his action under 28 U.S.C. § 2255. Plaintiff
claims he may reassert this claim under the savings clause in light of the Supreme
Court’s decision in Alleyne.1
On March 25, 2014, the Magistrate Judge recommended that the petition be
dismissed because Alleyne extended Apprendi to fact findings that impact
mandatory minimum sentences, and a mandatory minimum sentence was not at
issue in Plaintiff’s case. The Magistrate Judge also found that even if Apprendi
was the case relied on by Plaintiff, Apprendi does not apply retroactively because
claims based on sentencing are not cognizable under the savings clause unless the
petitioner invokes a Supreme Court decision that applies retroactively.
1
Plaintiff also raised claims based on the ineffective assistance of counsel and
double jeopardy in his petition, but he does not argue, and there is no legal basis to
contend, that these claims can be invoked under the savings clause.
2
On May 6, 2014, Plaintiff filed his objections to the R&R.
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); Williams
v. Wainwright, 681 F.2d 732, 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). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
B.
Analysis
Plaintiff’s reliance on Alleyne is misplaced. In Alleyne, the Supreme Court
simply extended Apprendi’s factual finding requirement to minimum sentences,
and held that “any fact that increases the mandatory minimum is an ‘element’ that
must be submitted to the jury.” 133 S.Ct. at 2155. Plaintiff asserts that his
360-month sentences exceeded the statutory maximum for his drug trafficking
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crimes.2 He does not contend that a mandatory minimum sentence was wrongfully
determined because of insufficient fact-finding. Upon de novo review, the Court
concludes that Plaintiff’s petition is required to be dismissed under Rule 4 of the
Rules Governing Section 2254 Cases because the petition reveals on its face that
relief is not warranted and the savings clause otherwise does not apply.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final
R&R is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s habeas corpus petition is
DISMISSED.
2
Plaintiff’s claim is one that arises, if at all, under Apprendi, and this claim has
been rejected by the district court and the Eleventh Circuit in Plaintiff’s case. See
United States v. Green, 475 F. App’x 313 (11th Cir. 2012) (citing earlier Eleventh
Circuit opinion to note that “Defendant Green[e] “was not in a position to raise an
issue under Apprendi [,] since his 360-month sentence is within the statutory
maximum for an enhanced penalty under the catch-all provision of [21] U.S.C.
§ 841(b)(1)(C) . . .”).
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SO ORDERED this 20th day of November, 2014.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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