Garner v. Drew
Filing
17
OPINION AND ORDER that Magistrate Judge Linda T. Walker's Final Report and Recommendation 14 is ADOPTED. IT IS FURTHER ORDERED that Petitioner Tony James Garner's Petition for Writ of Habeas Corpus 1 is DISMISSED. IT IS FURTHER ORDERED that Petitioner's Motion to Supplement Judicial Notice of Rules Change Johnson v. United States 16 is DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 3/7/2016. (anc)
sentenced Petitioner to 327 months imprisonment for the firearm conviction.
(R&R at 1).
The Sentencing Court imposed a period of incarceration in excess of the
maximum authorized for the firearm offense because the Sentencing Court
concluded that the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
applied. (Id.). The ACCA imposes a minimum period of fifteen years
imprisonment and a maximum period of life imprisonment if a person convicted of
being a felon in possession of a firearm has three previous convictions for a violent
felony or serious drug offense. 18 U.S.C. § 924(e). The ACCA defines “violent
felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that (i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or (ii) is burglary,
arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B). The Sentencing Court found that Petitioner had at least
three prior convictions for violent felonies, including a conviction for attempted
murder and three convictions for third-degree burglary under Alabama law.
([10.3] at 15-16); (10.6] at 4). The Sentencing Court, because of the three
third-degree burglary convictions, sentenced Petitioner under the ACCA. (R&R
at 2).
2
On November 16, 2005, the Eleventh Circuit affirmed Petitioner’s
conviction and sentence. United States v. Garner, 157 F. App’x 117, 118 (11th
Cir. 2005). On September 29, 2006, Petitioner filed a motion to vacate his
sentence under 28 U.S.C. § 2255 [10.5] in the Sentencing Court (“Motion to
Vacate”). Petitioner argued, for the first time, that his three prior convictions for
third-degree burglary under Alabama law should not count as “violent felonies”
under the ACCA. (R&R at 2-3); (Mot. to Vacate at 7-8). The Sentencing Court
denied Petitioner’s Motion to Vacate, concluding that Petitioner’s three
third-degree burglary convictions qualified as “violent felonies” under the ACCA.
(R&R at 3); ([10.6] at 4-5). The Sentencing Court relied on
United States v. Moody, 216 F. App’x 952, 952 (11th Cir. 2007), an unpublished
case in which the Eleventh Circuit concluded that a third-degree burglary
conviction in Alabama constitutes a “violent felony” under the ACCA.
United States v. Moody, 216 F. App’x 952, 953 (11th Cir. 2007). The Sentencing
Court and the Eleventh Circuit denied Petitioner a certificate of appealability from
the denial of his Motion to Vacate. (R&R at 3); ([10.7], [10.8]).
On January 26, 2015, Petitioner filed his Petition under 28 U.S.C. § 2241,1
challenging his sentence enhancement under the ACCA, arguing the savings clause
1
Petitioner styles his Petition as a “Motion Pursuant to 28 U.S.C. § 2241.”
3
under 28 U.S.C. § 2255(e) allows the Court to exercise jurisdiction over his
Petition. Petitioner argues that, under the Supreme Court decision in
Descamps v. United States, 133 S. Ct. 2276 (2013), and the Eleventh Circuit
decision in United States v. Howard, 742 F.3d 1334 (11th Cir. 2014), his three
prior burglary convictions should not count as “violent felonies” under the ACCA.
(Pet. at 3-4).
On June 26, 2015, the Magistrate Judge issued her R&R, recommending that
the Petition be dismissed for lack of jurisdiction, concluding that the savings clause
did not apply to Petitioner’s claim. (R&R at 5-8). Petitioner did not object to the
R&R. On July 24, 2015, Petitioner filed his Motion to Supplement, in which
Petitioner seeks to supplement his Petition to discuss the Supreme Court’s decision
in Johnson v. United States, 135 S. Ct. 2551 (2015). (Mot. to Supplement at 1).
Petitioner argues that Johnson supports his claim that his three burglary
convictions should not be considered predicate offenses under the ACCA. (Id.).
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
4
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).
Petitioner did not object to the Magistrate Judge’s R&R. The Court thus
reviews the Magistrate Judge’s findings and recommendations for plain error. See
Slay, 714 F.2d at 1095.
B.
Analysis
28 U.S.C. § 2255(e) provides:
An application for a writ of habeas corpus in behalf of a prisoner who
is authorized to apply for relief by motion pursuant to this section,
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 has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255(e) (emphasis added). The underlined clause of the statute is
commonly referred to as the “savings clause.” Bryant v. Coleman, 738 F.3d 1253,
1274 (11th Cir. 2013). The savings clause allows a federal prisoner who failed to
5
apply for relief by motion to petition for relief under 28 U.S.C. § 2241 if a
Section 2255 motion is inadequate or ineffective to challenge his detention.
28 U.S.C. § 2255(e). A petitioner bears the burden of affirmatively showing the
inadequacy or ineffectiveness of the remedy under Section 2255. Smith
v. United States, 263 F. App’x 853, 856 (11th Cir. 2008). A petitioner cannot
obtain relief under the savings clause simply because he is barred from filing a
Section 2255 motion because the motion is, under Section 2255(h), a “second or
successive” motion.2 Gilbert v. United States, 640 F.3d 1293, 1308-12 (11th Cir.
2011).
“[W]hether the savings clause in § 2255(e) may open the portal to a § 2241
petition is a ‘threshold’ jurisdictional issue that must be decided before delving
into the merits of the petitioner’s claim and the applicable defenses.” Bryant,
738 F.3d at 1262.
To affirmatively show that the savings clause applies to his claim, Petitioner
must establish:
(1) throughout his sentencing, direct appeal, and first § 2255
proceeding, our Circuit’s binding precedent had specifically addressed
2
To file a “second or successive” Section 2255 motion, a defendant must first
file an application with the Eleventh Circuit for an order authorizing the Court to
consider it. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)
(citing 28 U.S.C. § 2244(b)(3)(A)). “Without authorization, the district court lacks
jurisdiction to consider a second or successive petition.” Id.
6
[Petitioner’s] distinct prior state conviction that triggered § 924(e) and
had squarely foreclosed [Petitioner’s] § 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 [Descamps], as extended by this Court to
[Petitioner’s] distinct prior conviction, overturned our Circuit
precedent that had squarely foreclosed [Petitioner’s] § 924(e) claim;
(3) the new rule announced in [Descamps] applies retroactively on
collateral review; (4) as a result of [Descamps’] new rule being
retroactive, [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)- [Descamps]
error claim of illegal detention above the statutory maximum penalty
in § 924(a).
See id. at 1274.
That Magistrate Judge concluded that Petitioner does not meet the Bryant
requirements. (R&R at 5-8). The Court agrees. The first prong of the Bryant test
requires Petitioner to show that throughout 2003—when Petitioner was
sentenced—and continuing through May 1, 2007—when Petitioner’s Motion to
Vacate was denied by the Sentencing Court—binding Eleventh Circuit precedent
held that the crime of third-degree burglary under Alabama law constituted a
“violent felony” under the ACCA, such that his claim would have been foreclosed
when he filed his first Section 2255 motion. See Bryant, 738 F.3d at 1274.
When Petitioner was convicted, sentenced, and throughout his direct appeal,
there was no Eleventh Circuit precedent that directly addressed whether the crime
of third-degree burglary under Alabama law constituted a “violent felony” under
7
the ACCA and that “squarely foreclosed” Petitioner’s claim. It was only while
Petitioner’s Motion to Vacate was pending that the Eleventh Circuit held in
United States v. Moody, 216 F. App’x 953 (11th Cir. 2007), that third-degree
burglary under Alabama law constitutes a “violent felony” under the ACCA.
Moody, 216 F. App’x at 953. Moody is an unpublished opinion and, thus, is not
binding authority. See, e.g., 11th Cir. R. 36-2; see also United States v. Irey,
612 F.3d 1160, 1215 n.34 (11th Cir.2010) (en banc) (“Unpublished opinions are
not precedential . . . .”). Because there was no “binding” Eleventh Circuit
authority that “squarely foreclosed” Petitioner’s claim, Petitioner cannot satisfy the
first prong of the Bryant test. For this reason alone, Petitioner cannot rely on the
savings clause to establish jurisdiction for the Court to adjudicate his claim on the
merits. See Bryant, 738 F.3d at 1262.
Because Petitioner cannot show Eleventh Circuit precedent foreclosed his
claim, he likewise cannot satisfy the second prong of the Bryant test, which
requires that Petitioner show that a Supreme Court decision overturned the
Eleventh Circuit decision foreclosing his claims. See id. at 1274; see also
Campbell v. Warden, FCC Coleman-Medium, 595 F. App’x 839, 843 (11th Cir.
2014) (“Because there was no binding precedent that foreclosed his § 924(e)
8
argument, it follows that no Supreme Court ruling could have overturned precedent
foreclosing his claim.”).
Petitioner argues that under the Supreme Court decision in
Descamps v. United States, 133 S. Ct. 2276 (2013), and the Eleventh Circuit
decision in United States v. Howard, 742 F.3d 1334 (11th Cir. 2014), his three
prior burglary convictions should not count as “violent felonies” under the ACCA.
(Pet. at 3-4).
The Supreme Court, in Descamps, considered whether a burglary conviction
under California law constituted a “burglary” for the purposes of the ACCA. The
Descamps court “refined the process for determining whether a prior conviction
qualifies as a ‘violent felony’ under the ACCA.” Abney v. Warden, 621 F. App’x
580, 584 (11th Cir. 2015). The Descamps court reaffirmed that, to determine
whether a past conviction is for “burglary, arson, or extortion,” the enumerated
offenses in the ACCA, courts must use what is called the “categorical approach.”
Descamps, 133 S. Ct. at 2281. Under this approach, the district court must
“compare the elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly
understood.” Id. “The prior conviction qualifies as an ACCA predicate only if the
statute’s elements are the same as, or narrower than, those of the generic offense.”
9
Id. The Descamps court also affirmed that, in the case of a “divisible” statute—
one that sets out alternative crimes, some of which qualify as ACCA predicates—
the sentencing court may apply a ‘modified categorical approach’ to determine
which of the statutory alternatives formed the basis of the defendant’s prior
conviction and thus whether the conviction qualifies as an ACCA predicate. Id. at
2283-84. The Descamps court held that the “modified categorical approach,” did
not apply to “indivisible” statutes—statutes that define the crime at issue too
broadly rather than setting forth alternative elements. Id. at 2285-86. Where an
“indivisible” burglary statute defines “burglary” more broadly than the elements
for generic burglary, “a conviction under that statute is never for generic burglary”
and a district court should not enhance a sentence under the enumerated crimes
clause of the ACCA based on such a burglary conviction. Descamps, 133 S. Ct. at
2293.
The Eleventh Circuit, in Howard, considered Alabama’s third-degree
burglary offense in light of Descamps, and concluded that “the statute is
non-generic and indivisible, which means that a conviction [for third-degree
burglary in Alabama] cannot qualify as generic burglary under the ACCA.”
United States v. Howard, 742 F.3d 1334, 1349 (11th Cir. 2014). While Howard is
a binding Eleventh Circuit decision that supports Petitioner’s argument that his
10
third-degree burglary convictions should not have been considered violent felonies
under the ACCA, this decision was published after Petitioner’s Motion to Vacate
was denied. Petitioner, thus, does not satisfy the Bryant test, and the Court lacks
jurisdiction to consider his Petition on the merits. See Bryant, 738 F.3d at 1262
The Magistrate Judge correctly found that Petitioner failed to satisfy the first
two prongs of the Bryant test and, thus, the savings clause does not allow the Court
to exercise jurisdiction over his Petition. (R&R at 6-8). The Court finds no plain
error in Magistrate Judge’s findings and recommendation that this action be
dismissed for lack of jurisdiction. See Slay, 714 F.2d at 1095; 28 U.S.C.
§ 2255(e).3
3
Also pending before the Court is Petitioner’s Motion to Supplement, in
which Petitioner seeks to supplement his Petition to discuss the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (Mot. to Supplement
at 1). Petitioner argues that Johnson supports his claim that his three burglary
convictions should not be considered predicate offenses under the ACCA. (Id.).
In Johnson, the Supreme Court declared the residual clause of the ACCA to be
unconstitutionally vague, and held that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates the Constitution’s
guarantee of due process.” Johnson, 135 S. Ct. at 2563. The Supreme Court noted
that this decision did not “call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.”
Id.
Petitioner’s enhancement under the ACCA was based on the enumerated
crimes clause of the ACCA, not the residual clause and Johnson, thus, does not
directly apply to Petitioner’s claim. Respondent, in its Response [10] to the
Petition, argued that while Howard held that third-degree burglary in Alabama
does not qualify as a “violent felony” under the enumerated crimes clause of the
11
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [14] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner Tony James Garner’s Petition
for Writ of Habeas Corpus [1] is DISMISSED.4
IT IS FURTHER ORDERED that Petitioner’s “Motion to Supplement
Judicial Notice of Rules Change Johnson v. United States” [16] is DENIED AS
MOOT.
ACCA, it expressed no opinion regarding whether third-degree burglary would
qualify under the residual clause. (Resp. at 6-7). Johnson forecloses this
argument. Petitioner, however, does not cite any legal authority, and the Court has
not found any, to support that Petitioner is entitled to raise his Johnson or Howard
claims in his Section 2241 Petition. To the extent that Petitioner wishes to assert a
habeas claim based on Johnson or Howard, Petitioner would be required to raise
this claim in a Section 2255 motion after first filing an application with the
Eleventh Circuit for an order authorizing the Court to consider it. See Farris,
333 F.3d at 1216 (citing 28 U.S.C. § 2244(b)(3)(A)). Petitioner’s Motion to
Supplement is denied as moot.
4
Petitioner, as a federal prisoner seeking relief pursuant to 28 U.S.C. § 2241,
does not need a certificate of appealability to appeal the Court’s dismissal of his
Petition. See Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003). The
Court, thus, declines to address whether a certificate of appealability is warranted
in this action.
12
SO ORDERED this 7th day of March, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?