Dixon v. Hastings

Filing 20

ORDER ADOPTING 18 Report and Recommendations, Order of the Magistrate Judge as the opinion of the Court, as supplemented herein. Dixon's § 2241 Petition is DIMISSED. The Clerk is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. Furthermore, the Court DENIES Dixon leave to proceed in forma pauperis on appeal. Signed by Chief Judge Lisa G. Wood on 12/9/2015. (ca)

n the Auiteb btatto flitritt Court
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TONY EDWARD DIXON,
Petitioner,

CIVIL ACTION NO.: 2:14-cv-170

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V.

WARDEN SUZANNE HASTINGS,
Respondent.

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ORDER

Presently before the Court are Petitioner Tony Dixon's
("Dixon") Objections to the Magistrate Judge's Report and
Recommendation dated September 21, 2015. Dkt. No. 18. After an
independent and de novo review of the entire record, the Court
OVERRULES Dixon's Objections and CONCURS with and ADOPTS the
Magistrate Judge's Report and Recommendation, as supplemented
herein, as the opinion of the Court. Dixon's Section 2241
Petition is DIMSISSED.

The Clerk of Court is DIRECTED to enter

the appropriate judgment of dismissal and to CLOSE this case.
Additionally, the Court DENIES Dixon in forma pauperis status on
appeal.'

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Because Dixon is challenging a federal sentence and has filed a
Section 2241 Petition, no Certificate of Appealability ("COA") is

I.

Discussion

In his Objections, Dixon concedes that the decision in
Descamps v. United States,

U.S.

, 133 S. Ct. 2276 (June

20, 2013), is not retroactively applicable to cases on
collateral review such as his. However, Dixon's Objections
focus on his disagreement with the Magistrate Judge's
application of the United States Supreme Court's recent decision
in Johnson v. United States,

U.S.

, 135 S. Ct. 2551 (June

26, 2015). Specifically, Dixon asserts that his petition is not
a second or successive motion under 28 U.S.C. § 2255(h), but is
a properly filed 28 U.S.C. § 2241 petition in which he alleges
he was wrongfully sentenced in excess of the statutory maximum.
Dkt. No. 19, p. 6. Dixon also asserts that, if Johnson does not
apply retroactively, he cannot obtain his requested relief
pursuant to Section 2241.
The Court finds that the Magistrate Judge accurately set
forth the law applicable to Dixon's Section 2241 Petition, and
that law need not be recounted in depth here. However, the
Court makes a point of clarification. Dixon filed this Petition
pursuant to 28 U.S.C. § 2241, and, through his Petition, he is
attacking the imposition of his sentence, not the execution
thereof. Thus, to proceed pursuant to Section 2241, Dixon must

required for purposes of an appeal. 28 U.S.C. § 2253(c); Sawyer v.
Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003).
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satisfy the savings clause of Section 2255, which is found in
Section 2255(e). Taylor v. Warden, FCI Marianna, 557 F. App'x
911, 913 (11th Cir. 2014). As the Magistrate Judge concluded,
Dixon fails to meet his burden.
In addition, to proceed under Section 2255, Dixon would
have to seek permission from the Eleventh Circuit Court of
Appeals to file a second or successive Section 2255 motion, as
he has previously filed a Section 2255 motion. 28 U.S.C. §
2255(h); Dkt. No. 18, pp. 10-11 (discussing Section 2255(h) and
Dixon's inability to meet its requirements). As the Magistrate
Judge noted in the Report and Recommendation, this Court issues
no opinion on the success of any such application to the Court
of Appeals. Dkt. No. 18, pp. 10, n.7. However, at this time,
Dixon has not received any such authorization from the Eleventh
Circuit, and, therefore, he cannot attack his sentence via
Section 2255 in this Court.
While it may be that the Johnson decision will allow for
the filing of a second or successive Section 2255 motion
pursuant to Section 2255 (h) (2), Dixon is not permitted to
proceed with his Section 2241 Petition to raise his Johnsonrelated arguments. See Haygood v. Warden, Fed. Corr. Inst.,
Berlin, N.H., No. 15-CV-302-SM, 2015 WL 7099677, at *2 (D.N.H.
Nov. 13, 2015) ("The savings clause is not available for any
constitutional claims that fall within the scope of 28 U.S.C.

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§ 2255(h), which allows prisoners to apply to federal appellate
courts to obtain leave to file successive § 2255 motions that
are based on new constitutional rulings where the Supreme Court
has made the ruling retroactively applicable to cases on
collateral review."); Bishop v. Cross, No. 15-cv-1119-DRH, 2015
WL 7008178, at *3 (S.D. Ill. Nov. 12, 2015) (recognizing the
retroactive application of Johnson to Section 2255 motions in
the Seventh Circuit but noting "Johnson does not open the door
to relief under § 2241 at this time."); Brown v. Warden, No. 15CV-88-HRW, 2015 WL 6702451, at *4 (E.D. Ky. Nov. 3, 2015)
("Since Johnson was rendered four months ago, district courts
have consistently concluded that a habeas corpus petition under
§ 2241 is not a proper method to assert a Johnson claim.")
(citing Ruiz v. Ebbert, No. 3:CV-151612, 2015 WL 5997105, at *2
(M.D. Pa. Oct. 14, 2015) (dismissing the § 2241 petition and
advising the petitioner that he should seek authorization from
the appropriate Court of Appeals to file a second or successive
§ 2255 petition regarding his Johnson claim)); Bishop v. Cross,
No. 15-CV-854-DRH, 2015 WL 5121438, at *2_3 (S.D. Ill. Aug. 31,
2015) (holding that habeas petition seeking relief from § 4B1.1
enhancement in light of Johnson was not cognizable under § 2241,
but must instead be brought by motion under § 2255)); Hollywood
v. Rivera, No. 2:15CV113 JM/BD, 2015 WL 5050253, at *2 (E.D.
Ark. Aug. 4, 2015) (same)); Cockrell v. Krueger, No. 15-CV-1279,

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2015 WL 4648029, at *2_3 (C.D. Ill. Aug. 5, 2015)); Jennings v.
Lariva, No. 2:14-CV-63-WTIj-WGH, 2015 WL 5156047, at *2 (S.D.
Ind. Sept. 2, 2015) (collecting cases)); Wood v. Maiorana, No.
3:CV-15-1409, 2015 WL 4663267, at **2_6 (M.D. Pa. Aug. 6,
2015)); see also Bishop v. Cross, Civil No. 15-cv-854-DRH-CJP,
2015 WL 7451012, at *2 (S.D. Iii. Nov. 24, 2015) (Johnson
announces a new rule of constitutional law, and therefore,
cannot be the basis for a § 2241 petition). Accordingly,
Dixon's Section 2241 claims, grounded in Johnson, must be
DISMISSED.
II. Conclusion

For the above stated reasons, Dixon's Objections are
OVERRULED.

The Court CONCURS with and ADOPTS the Magistrate

Judge's Report and Recommendation as the opinion of the Court,
as supplemented herein. Dixon's Section 2241 Petition is
DIMSISSED.

The Clerk of Court is DIRECTED to enter the

appropriate judgment of dismissal and to CLOSE this case.
Furthermore, the Court DENIES Dixon leave to

in forma

pauperis on appeal
SO ORDERED, this

/dayof

ISA/ODBEY WOOD, CHIEF JUDGE
II7ED STATES DISTRICT COURT
TiTHERN DISTRICT OF GEORGIA

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2015.