Jenkins v. Drew
Filing
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OPINION AND ORDER that Petitioner's Motion for Extension of Time 5 is GRANTED. IT IS FURTHER ORDERED that Petitioner's Objections to the R&R 6 are OVERRULED. IT IS FURTHER ORDERED that Magistrate Judge Alan J. Baverman's Final Report and Recommendation 3 is ADOPTED. IT IS FURTHER ORDERED that this action is DISMISSED. Signed by Judge William S. Duffey, Jr on 3/28/2016. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GORMAN JENKINS,
Petitioner,
v.
1:15-cv-2974-WSD
WARDEN DARLEEN DREW,
Bureau of Prison, Atlanta Prison
Camp,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [3] (“R&R”). The R&R recommends
Petitioner Gorman Jenkins’s (“Petitioner”) petition for writ of habeas corpus [1]
(“Habeas Petition”) be denied. Also before the Court are Petitioner’s “Motion for
Another 14 Day Time Extension to prepare for the Magistrate Judge’s Order and
Report and Recommendation Based on His Actual and Factual Innocence a Schlup
Claim” [5] (“Motion for Extension of Time”) and Objections to the R&R [6].
I.
BACKGROUND
Petitioner, confined in the Atlanta Prison Camp in Atlanta, Georgia,
challenges, under 28 U.S.C. § 2241, his conviction and sentence.
Petitioner was indicted in the Middle District of Florida on one count of
conspiring to distribute cocaine. Petitioner pleaded guilty, and, on
August 10, 2011, the court sentenced him to 192 months imprisonment. On
September 18, 2012, the Eleventh Circuit Court of Appeals affirmed the judgment
against Petitioner. In October 2013, he moved the United States District Court for
the Middle District of Florida to vacate his sentence under 28 U.S.C. § 2255. On
May 14, 2014, the court denied Petitioner’s Section 2255 petition.
Petitioner now moves under Section 2241, presenting nine claims for relief,
including a claim of actual innocence. In support of his Habeas Petition, Petitioner
relies on three United States Supreme Court opinions: United States v. Davila, –––
U.S. –––, 133 S.Ct. 2139 (2013); Haines v. Kerner, 404 U.S. 519 (1972); and
Napue v. People of State of Ill., 360 U.S. 264 (1950).
On September 2, 2015, the Magistrate Judge issued his R&R. In it, he found
that Petitioner could not move under Section 2241, because he did not meet his
burden of showing that the savings clause applies. He found that Petitioner did not
meet this burden because he did not present any claim that is based on a
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retroactively applicable Supreme Court decision. (R&R at 5). The Magistrate
Judge recommended denial of the Habeas Petition.
On September 16, 2015, Petitioner filed his Motion for Extension of Time,
seeking an additional fourteen (14) days in which to file his Objections.
On September 18, 2015, Petitioner filed his Objections to the R&R.
Petitioner “agree[s] with the Magistrate Judge’s Rule [4] Error because he is
absolutely correct.” (Obj. at 2 (brackets in original)). He argues, however, that, in
his Habeas Petition, he “inadvertently failed to cite [Schlup v. Delo] and
[McQuiggn (sic) v. Perking] as Authority for this Honorable Court’s jurisdiction
over his actual innocence claims.” (Id. (brackets in original)). Petitioner argues
that Schlup v. Delo, 513 U.S. 298 (1995) and McQuiggin v. Perkins, ––– U.S. –––,
133 S. Ct. 1924 (2013) provide that Petitioner’s actual innocence claim “serve[s]
as a gateway through which [his habeas claims] may pass.” (Id. at 1).
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) (per curiam). A district judge
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“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). Where no party has objected to the report and recommendation, a
court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
Section 2255 prohibits a court from entertaining a federal prisoner’s
application for habeas corpus relief under Section 2241 if the applicant has not
applied for, or has been denied, Section 2255 relief, unless Section 2255 “is
inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
This provision is commonly referred to as Section 2255’s “savings clause.” The
petitioner bears the burden of showing that the savings clause applies. Zelaya
v. Sec’y, Fla. Dep’t of Corr., 798 F.3d 1360, 1370 (11th Cir. 2015).
The Eleventh Circuit has stated that the savings clause applies to a claim that
challenges a conviction 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.
Id. (quoting Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999)).
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The Magistrate Judge found that Petitioner does not present any claim that is
based on a retroactively applicable Supreme Court decision. (R&R at 5). He
noted that Haines and Napue were available during Petitioner’s trial, appeal, and
Section 2255 proceedings. (Id.). The Magistrate Judge noted that Davila, which
was available during Petitioner’s Section 2255 proceedings, overturned precedent
that was actually more favorable to Petitioner’s Rule 11(c)(1) claim, and thus did
not “bust[] circuit law that foreclosed Petitioner’s Rule 11(c)(1) claim.” (Id.).
Petitioner does not object to these findings, and the Court finds no plain error in
them. See Slay, 714 F.2d at 1095.
Petitioner objects to the R&R, relying on two cases he did not present to the
Magistrate Judge. He argues that McQuiggin and Schlup allow the Court to
consider his Habeas Petition. (Obj. at 1). The Court conducts its de novo review
of this argument. See Wainwright, 681 F.2d at 732.1
In McQuiggin, the United States Supreme Court held that actual innocence
can serve as a gateway through which a prisoner may bring his first
post-conviction challenge despite the expiration of the relevant statute of
limitations. 133 S. Ct. at 1928, 1934-36. A petitioner may only do so if the
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Petitioner’s Motion for Extension of Time is granted, and the Court
considers his Objections.
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petitioner’s claim of actual innocence meets the “demanding” standard set out by
the Court in Schlup. Id. at 1936. Here, even assuming that Petitioner meets the
Schlup standard, he would not be entitled to bring a Section 2241 petition.
“The McQuiggin Court emphasized that its holding concerned an initial
habeas petition brought by a state prisoner; it did not discuss successive petitions
by federal prisoners.” Candelario v. Warden, 592 F. App’x 784, 785 (11th Cir.
2014) (dismissing Section 2241 petition where petitioner had previously filed an
unsuccessful Section 2255 petition and subsequently raised a claim of actual
innocence under Section 2241). Because Petitioner “attacks the validity of his
sentence, not the manner of his confinement or execution of his sentence . . . he
may bring a § 2241 petition only via the savings clause.” Id. at 785-86. “[E]ven
assuming McQuiggin is retroactively applicable and applies to federal prisoners,”
McQuiggin’s holding “was limited to initial petitions for habeas corpus,” and thus
does not meet the requirements of the savings clause in this case. Id. at 786
(emphasis in original). This is the same rule applied in our circuit. See Zelaya,
798 F.3d at 1370.
Petitioner does not provide any other argument or authority to meet his
burden to show that the savings clause applies. Petitioner’s Section 2241 Habeas
Petition is thus required to be denied.
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioner’s Motion for Extension of
Time [5] is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R [6]
are OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
SO ORDERED this 28th day of March, 2016.
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