Greenberg v. Hastings

Filing 17

ORDER ADOPTING the 14 Magistrate Judge's Report and Recommendations, and GRANTING 10 Respondent's Motion to Dismiss. Greenberg's 28 U.S.C. 2241 petition is DISMISSED. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 2/19/2013. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

TERRY LEE GREENBERG,
Petitioner,
vs

CIVIL ACTION NO.: CV212-197

SUZANNE ft HASTINGS, Warden,
Respondent.

ORDER
Petitioner Terry Lee Greenberg ("Greenberg") filed Objections to the Magistrate
Judge's Report dated January 28, 2013, which recommended that Greenberg's 28
U.S.C. § 2241 petition be dismissed. After an independent and de novo review of the
record, the undersigned concurs with the Magistrate Judge's Report and
Recommendation.
In his Objections, Greenberg argues that, under Gilbert v. United States, 640
F.3d 1293, 1318 (11th Cir. 2011), he is entitled to bring his actual innocence claim
under 28 U.S.C. § 2255(h) without meeting the test announced in Wofford v. Scoff, 177
F.3d 1236, 1244 (11th Cir. 1999). Section 2255(h) provides an actual innocence
exception to bringing a second or successive § 2255 motion; it does not relate in any
way to a prisoner's ability to bring a § 2241 petition. Wofford provides the framework

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by which a prisoner can file a § 2241 p€tition to attack his conviction or sentence, and
Greenberg has not met the Wofford test.
In his Objections, Greenberg also provides numerous excerpts of law dealing
with procedural default and miscarriage of justice and the relationship of those
concepts to his actual innocence claim. Greenberg argues that his actual innocence
claim can be heard pursuant to § 2241 because it would be a fundamental miscarriage
of justice for this Court not to render a merits determination of that claim. Greenberg's
argument was foreclosed by Kelley v. Hickey, 307 F. App'x 424 (11th Cir. 2009). In
Kelley, a § 2241 petitioner appealed the dismissal of his petition, which asserted that
he was actually innocent of the crime for which he was convicted, arguing that a
miscarriage of justice would result if the district court did not render a decision on the
merits of his claim. The Court of Appeals for the Eleventh Circuit reiterated welldefined circuit law stating that a § 2241 petition is appropriate to challenge the validity
of a federal conviction or sentence only when the remedy provided by § 2255 is
inadequate or ineffective and that § 2255 is inadequate or ineffective only when the
Wofford test is met. The court went on to explain that "[o]nce the savings clause .
applies to open the portal to a [section] 2241 proceeding, the proper inquiry. . . will be
whether the petitioner can establish acual innocence of the crime for which he has
been convicted . . . ." Id. at 426 (quoting Wofford, 177 F.3d at 1244 n.3) (some
alterations in original). The court determined that because the petitioner did not open
the portal to allow him to bring a § 2241 petition, his petition was properly dismissed.
Id. Like the petitioner in Kelley, Greenberg has not met the Wofford test; therefore,
Greenberg cannot bring his claim pursuant to § 2241, and this Court's decision to not

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2

render a decision on the merits of Greenberg's actual innocence claim will not result in
a miscarriage of justice.
Greenberg's Objections to the Magistrate Judge's Report and Recommendation
are without merit and are overruled.

The Report and Recommendation of the

Magistrate Judge is adopted as the Opinion of the Court. Respondent's Motion to
Dismiss is GRANTED. Greenberg's 28 U.S.C. § 2241 petition is DISMISSED. The
Clerk of Court is directed to enter the appropriate judgment of dismissal.
SO ORDERED, this

day of

, 2013.

LISA GQDBEY WOOD, CHIEF JUDGE
UNITEP STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA.

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