Garner v. Drew
Filing
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OPINION AND ORDER dismissing Petitioner Tony James Garners 28 U.S.C. § 2241 petition for a writ of habeas corpus 1 for lack of subject matter jurisdiction. Signed by Judge William S. Duffey, Jr on 2/8/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TONY JAMES GARNER,
Petitioner,
v.
1:16-cv-2278-WSD
D. DREW, Warden,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [2] (“R&R”). The R&R recommends the Court deny
Petitioner Tony James Garner’s (“Petitioner”) 28 U.S.C. § 2241 petition for a writ
of habeas corpus [1] (“Section 2241 Petition”).
I.
BACKGROUND1
This is the second 2241 Petition that Petitioner has filed on the same issue.
In Garner v. Drew, No. 1:15-cv-255-WSD (N.D. Ga. Mar. 7, 2016), the Court
dismissed Petitioner’s petition under Section 2241 for lack of jurisdiction. The
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The facts are taken from the R&R and the record. The parties have not
objected to any specific facts in the R&R, and the Court finds no plain error in
them. The Court thus adopts the facts set out in the R&R. See Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993).
Court found that Petitioner failed to establish that the “savings clause” applied to
his claim. The Court denied Petitioner’s motion for reconsideration.
Petitioner then filed in the Eleventh Circuit an application to file another
Section 2255 motion2 challenging the enhancement of his sentence under the
ACCA, arguing that the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015) applied. On June 1, 2016, the Eleventh Circuit denied
Petitioner’s application, finding that Johnson did not apply to Petitioner’s case.
Petitioner then filed his second Section 2241 Petition in this Court, asserting the
same arguments that he asserted in his first Section 2241 petition and in his
application to the Eleventh Circuit.
On July 6, 2016, the Magistrate Judge issued her R&R. The Magistrate
Judge found that Petitioner’s Section 2241 Petition should be dismissed for the
same reasons the Court dismissed Petitioner’s first petition. Petitioner did not file
any objections to the R&R.
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In 2006, Petitioner filed a Section 2255 motion challenging the enhancement
of his sentence under the Armed Career Criminal Act (“ACCA”). The sentencing
court denied that motion.
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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
“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, as here, no party has objected to the report and
recommendation, the 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
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
[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
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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).
Bryant, 738 F.3d at 1262. “[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.
The Court previously found that the savings clause does not apply to
Petitioner’s claim, including because: (1) 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 the ACCA and that “squarely
foreclosed” Petitioner’s claim, and (2) while United States v. Howard, 742 F.3d
1334, 1349 (11th Cir. 2014), is a binding Eleventh Circuit decision that supports
Petitioner’s argument that his third-degree burglary convictions should not have
been considered violent felonies under the ACCA, this decision was published
after Petitioner’s 2006 motion to vacate was denied.
The Magistrate Judge found that Petitioner cannot obtain relief under the
savings clause in this case for the same reason the Court previously found that he
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could not obtain relief under the savings clause: Petitioner does not satisfy the
jurisdiction test set forth in Bryant, because no binding precedent squarely
foreclosed his claim regarding his burglary convictions when his first Section 2255
motion was litigated nine years ago. The Magistrate Judge thus recommends the
Court dismiss Petitioner’s Section 2241 Petition for lack of subject matter
jurisdiction. The Court finds no plain error in these findings and recommendation,
and Petitioner’s Section 2241 Petition is dismissed for lack of subject matter
jurisdiction.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioner Tony James Garner’s
28 U.S.C. § 2241 petition for a writ of habeas corpus [1] is DISMISSED for lack
of subject matter jurisdiction.
SO ORDERED this 8th day of February, 2017.
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