Lloyd v. United States of America

Filing 12

ORDER ADOPTING 9 Report and Recommendations of the Magistrate Judge as the opinion of the Court; denying as moot 11 Motion to Withdraw filed by Bruce Lloyd. Signed by Judge Lisa G. Wood on 6/30/2017. (ca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

BRUCE LLOYD,
Movant,
CV417-073

V.

CR415-184

UNITED STATES OF AMERICA,
Respondent.
ORDER

Before the Court is the Magistrate Judge's Report and
Recommendation (R&R), doc. 9, to which Movant Lloyd has filed a

"reply," doc. 10. Construing his reply as objections to the R&R, the
Court has conducted a careful, de novo review of the file.

Movant's objections, recapitulating his arguments that counsel
was ineffective and that he was improperly sentenced as an armed
career criminal (doc. 10), only repeat the same legal and factual
contentions the R&R addressed (and rejected) in full. He contends that
Georgia robbery and possession with intent to distribute marijuana are
not predicate convictions for sentencing enhancement under the Armed

Career Criminal Act -- they are. See doc. 9 at 4-12. He contends that

counsel was deficient for failing to argue otherwise — counsel wasn't.
See id, at 9 n. 5 & 12 n. 7. Finally he objects that the Court failed to

"view" his arguments under Mathis and Descamps (doc. 11 at 3) — it
didn't. See doc. 9 at 4-12 (applying the "modified categorical approach"

as explained by the Supreme Court in Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016) and Descamps v. United States, 570 U.S.

, 133

S.Ct. 2276, 2281)(2013)).i

Accordingly, the Report and Recommendation of the Magistrate

Judge is ADOPTED as the opinion of the Court.^ Further, a prisoner
seeking relief under 28 U.S.C. § 2255 must obtain a certificate of
appealability ("CCA") before appeahng the denial of his application for
writ of habeas corpus. 28 U.S.C.§ 2253(c)(1)(B). This Court "must issue
or deny a certificate of appealability when it enters a final order adverse
to the applicant."

^

Rule 11(a) to the Rules Governing Section 2255

He also demands the Court apply Tanksley, an out-of-circuit case involving a

Texas marijuana offense imder the ACCA. See doc. 11 at 3; United States v.
Tanksley, 848 F.3d 347 (5th Cir.), supplemented, 854 F.3d 284 (5th Cir. 2017). That
case, however, is both not binding on this Court (which sits in the Eleventh Circuit)
and involves a different state's drug laws. Even if the Court were to look outside the
Eleventh Circuit, Lloyd's prior conviction for Georgia possession with intent to
distribute marijuana is unaffected by the Tanksley holding.

^

Lloyd's request to vacate the R&R (doc. 11) because he was on lockdown and

unable to file objections - despite that he filed objections ~ is further DENIED as
moot.

Proceedings. This Court should grant a COA only if the prisoner makes
a "substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). For the reasons set forth in the R&R, and in consideration
of the standards enunciated in Slack v. McDaniel, 529 U.S. 473, 482-84

(2000), movant has failed to make the requisite showing. Accordingly, a

COA is DENIED in this case.^ Moreover, because there are no nonfrivolous issues to raise on appeal, an appeal would not be taken in good
faith and movant is not entitled to appeal in forma pauperis. See
28 U.S.C. § 1915(a)(3).

SO ORDERED,this

ay GiJxme, 2017.

LISA GODBEY WOOD,JUDGE
JJNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

® "If the court denies a certificate,[a party] may not appeal the denial but may seek
a certificate from the court of appeals under Federal Rule of Appellate Procedure 22."
Rule 11(a) to the Rules Governing Section 2255 Proceedings.
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