Garner v. Gilley

Filing 16

MEMORANDUM OPINION & ORDER: 1. Garner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1 ] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. The Court will enter a corresponding Judgment. Signed by Judge Claria Horn Boom on 01/17/2023.(KJA)cc: COR and Tony Garner by US Mail

Case: 6:22-cv-00149-CHB Doc #: 16 Filed: 01/17/23 Page: 1 of 4 - Page ID#: 98

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at LONDON)
TONY GARNER,
Petitioner,

Civil Action No. 6:22-CV-149-CHB

J. GILLEY, WARDEN,

MEMORANDUM OPINION
AND ORDER

v.

Respondent.

*** *** *** ***
Tony Garner is a federal prisoner at the United States Penitentiary – McCreary in Pine
Knot, Kentucky. Proceeding without a lawyer, Garner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1]. The Respondent then filed a response in opposition to
Garner’s petition [R. 10], and Garner filed a reply brief [R. 15]. Thus, Garner’s petition is now
ripe for a decision. For the reasons set forth below, the Court will deny Garner’s petition.
In 2003, Garner pled guilty to being a felon in possession of a firearm. See United States
v. Garner, No. 1:03-cr-00095, at R. 20 (S.D. Ala. 2003). The district court determined that Garner
was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), because he had three or more prior convictions for violent felonies or serious drug
offenses, and it ultimately sentenced him to 327 months in prison. See id. at R. 38. Garner
appealed his conviction and sentence, but the United States Court of Appeals for the Eleventh
Circuit eventually affirmed the district court’s judgment. See United States v. Garner, 157 F.
App’x 117 (11th Cir. 2005).

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Garner later moved to vacate his sentence pursuant to 28 U.S.C. § 2255, and he argued,
among other things, that his prior third-degree burglary conviction in Alabama was not a qualifying
predicate offense for purposes of an ACCA enhancement. See Garner, No. 1:03-cr-00095, at
R. 51. The district court, however, denied Garner’s motion and entered a corresponding judgment.
See id. at R. 58, R. 59. Garner then continued to file numerous related motions, including but not
limited to a motion for reconsideration and multiple additional § 2255 motions, but the district court
repeatedly denied his requests for relief. See, e.g., id. at Rs. 60–71, 73, 75–87, 91–92, 103–112.
In 2015, while Garner was incarcerated at a federal prison in Atlanta, Georgia, he filed a
§ 2241 petition with the United States District Court for the Northern District of Georgia, and he
once again argued that his Alabama burglary conviction was not a qualifying ACCA predicate
offense. See Garner v. Drew, No. 1:15-cv-00255-WSD, at R. 1 (N.D. Ga. 2015). The Northern
District of Georgia, however, dismissed Garner’s petition and denied his request for
reconsideration. See id. at Rs. 17–20. Garner did not appeal.
In 2018, Garner field yet another § 2241 petition, which was later transferred to the United
States District Court for the District of Maryland since Garner was incarcerated at a federal prison
in that state. See Garner v. Warden, No. 1:19-cv-02007-GLR, at R. 1, R. 19 (D. Md. 2018). Garner
again argued that his ACCA-enhanced sentence was improper, and, to support his petition, he
relied on Johnson v. United States, 135 S. Ct. 2551 (2015), Descamps v. United States, 133 S. Ct.
2276 (2013), and United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). See Garner, No. 1:19cv-02007-GLR, at R. 1. The District of Maryland, however, dismissed Garner’s petition and
declined to issue a certificate of appealability. See id. at R. 30.
Garner is now incarcerated in this judicial district, and he filed a § 2241 petition with this
Court. [R. 1]. Once more, Garner argues that his ACCA-enhanced sentence is no longer valid,

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and he again relies on Descamps and Howard for support, as well as other decisions, including but
not limited to the Supreme Court’s ruling in Mathis v. United States, 579 U.S. 500 (2016).
Ultimately, Garner suggests that this Court should vacate his sentence so that he can be resentenced
without the ACCA enhancement. See [R. 1, p. 6].
Garner’s petition, however, constitutes an impermissible collateral attack on his underlying
sentence. While a federal prisoner may challenge the legality of his sentence on direct appeal and
through a timely § 2255 motion, he generally may not do so in a § 2241 petition. See United States
v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining the distinction between a § 2255 motion
and a habeas petition under § 2241). After all, a § 2241 petition is usually only a vehicle for
challenges to actions taken by prison officials that affect the way the prisoner’s sentence is being
carried out, such as computing sentence credits or determining parole eligibility. See Terrell v.
United States, 564 F.3d 442, 447 (6th Cir. 2009). Simply put, Garner cannot use his § 2241 petition
as a way of challenging his sentence.
It is true that there is a narrow exception under which federal prisoners have been permitted
to challenge their sentences in a § 2241 petition. See Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).
But, in Hill, the United States Court of Appeals for the Sixth Circuit expressly limited its decision
to a set of very narrow circumstances. See id. at 599–600. And, more recently, the Sixth Circuit
clearly explained that, to the extent a petitioner’s claims were or could have been raised in a prior
§ 2241 petition, they are successive or an abuse of the writ and need not be further addressed.
Dotson v. Kizziah, 966 F.3d 443, 444–45 (6th Cir. 2020) (citing Dietz v. U.S. Parole Comm’n, 260
F. App’x 763, 765–66 (6th Cir. 2008)).
In light of the foregoing, Garner’s petition is unavailing. As the Respondent correctly
points out, see [R. 10, pp. 7–8], Garner’s claims regarding his ACCA-enhanced sentence were (or

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at the very least could have been) litigated in his § 2241 proceedings before the federal district
courts in both Georgia and Maryland. Moreover, Garner has not identified any legal authority that
would allow him to reassert his same arguments, for a third time, simply because he has since been
transferred to a federal prison in this judicial district. Thus, consistent with Sixth Circuit case law,
including the decision in Dotson, the Court will deny Garner’s petition as impermissibly successive
or otherwise an abusive of the writ.
Accordingly, the Court ORDERS as follows:
1. Garner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is
DENIED.
2. This action is DISMISSED and STRICKEN from the Court’s docket.
3. The Court will enter a corresponding Judgment.
This 17th day of January, 2023.

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