Cartagena v. Drew

Filing 18

ORDER adopting 16 Final Report and Recommendation. IT IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus 1 is DENIED. Signed by Judge William S. Duffey, Jr on 3/24/2016. (anc)

appeals were denied, in 2006, Petitioner filed a motion to vacate his sentence under
28 U.S.C. § 2255, challenging his sentencing as a career offender under the U.S.
Sentencing Guidelines. Petitioner did not challenge on appeal his ACCA sentence
enhancement. In April 2006, the sentencing court dismissed Petitioner’s Section
2255 motion as untimely.
Petitioner now challenges his sentence enhancement under the ACCA.
Petitioner claims his burglary convictions under Florida law are not violent
felonies and thus cannot serve as the predicates for the sentence enhancement.
Petitioner invokes Section 2255’s savings clause in his request for relief.
On April 22, 2015, the Magistrate Judge issued her R&R, recommending
that Petitioner’s Section 2255 petition be denied. The Magistrate Judge found that
Petitioner has not satisfied the five-factor test for the applicability of the savings
clause, as articulated by the Eleventh Circuit in Bryant v. Warden, FCC ColemanMedium, 738 F.3d 1253, 1274 (11th Cir. 2013).
Petitioner did not object 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

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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).
Petitioner did not object to the R&R, and the Court thus conducts a plain error
review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983).
B.

Analysis

The savings clause allows a federal prisoner to obtain relief under Section
2241 only if it “appears that the remedy by [§ 2255] motion is inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). “The
applicability of the savings clause is a threshold jurisdictional issue” that district
courts must determine before reaching the merits of a Section 2241 petitioner’s
claims. Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337-38
(11th Cir. 2013). If a petitioner does not satisfy the Eleventh Circuit’s test for
applicability of the savings clause, the district court “lack[s] subject-matter
jurisdiction to entertain the matter.” Id. at 1349-50.
In the Eleventh Circuit, the savings clause applies to a claim that a petitioner
was improperly sentenced under the ACCA (§ 924(e)) for prior violent felony
convictions only if the petitioner shows the following:
(1) throughout his sentencing, direct appeal, and first § 2255
proceeding, our Circuit’s binding precedent had specifically addressed
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[the petitioner’s] distinct prior state conviction that triggered § 924(e)
and had squarely foreclosed [his] § 924(e) claim that he was
erroneously sentenced above the 10–year statutory maximum penalty
in § 924(a); (2) subsequent to his first § 2255 proceeding, the
Supreme Court’s decision in Begay [or another case]. . . overturned
our Circuit precedent that had squarely foreclosed [the petitioner’s] §
924(e) claim; (3) the new rule announced in Begay [or the other
Supreme Court case] applies retroactively on collateral review; (4) as
a result of [the] new rule being retroactive, [the petitioner’s] current
sentence exceeds the 10–year statutory maximum authorized by
Congress in § 924(a); and (5) the savings clause in § 2255(e) reaches
his pure § 924(e)-Begay error claim of illegal detention above the
statutory maximum penalty in § 924(a).
Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1274 (11th Cir. 2013).
The Magistrate Judge found that Petitioner failed to meet the first factor of
the Bryant test because petitioner failed to identify a pre-February 2002 decision
from the United States Supreme Court or the Eleventh Circuit that held that the
crime of burglary of a dwelling under Florida law is a violent felony under the
ACCA. (R&R at 6). The Court agrees. See Williams, 713 F.3d at 1344 (“No
Eleventh Circuit precedent squarely held that burglary of a dwelling, as defined
[Florida’s penal code], was a violent felony for ACCA purposes” until at least
2005). The Magistrate Judge found that, because Petitioner failed the first prong,
he necessarily failed the second prong. (R&R at 7). The Magistrate Judge
concluded that Petitioner’s Section 2241 must be dismissed. The Court agrees.
See Williams, 713 F.3d at 1348 (“[W]hat is dispositive is that his claim was not

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foreclosed at the time by binding Eleventh Circuit precedent that Begay overruled
or abrogated.”). The Court finds no plain error in the Magistrate Judge’s findings
and recommendation, and Petitioner’s habeas petition is denied. See Slay, 714
F.2d at 1095.
III.

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Final

Report and Recommendation [16] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas
corpus [1] is DENIED.

SO ORDERED this 24th day of March, 2016.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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