Canady v. United States of America

Filing 15

ORDER adopting 7 Report and Recommendation. (1) Defendant Matthew Antoine Canady's Objection to the Report and Recommendation [Dkt. No. 12 ] is OVERRULED. (2) Defendant Matthew Antoine Canady's petition for a writ of habeas corpus unde r 28 U.S.C. § 2241 [Dkt. No. 1 ] is DISMISSED WITHOUT PREJUDICE. (3) Defendant Matthew Antoine Canady's motion for appointment of counsel [Dkt. No. 3 ] is DENIED. (4) Defendant Matthew Antoine Canady's application to proceed in forma pauperis [Dkt. No. 2 ] is DENIED. (Written Opinion) Signed by Judge Joan N. Ericksen on July 12, 2017. (CBC)

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA MATTHEW ANTOINE CANADY, Petitioner, Case No. 17-CV-882 (JNE/KMM) ORDER v. UNITED STATES OF AMERICA, Respondent. This matter is before the Court on a Report and Recommendation (“R&R”) issued by the Honorable Katherine Menendez, United States Magistrate Judge, on May 5, 2017. (Dkt. No. 7.) The R&R recommends, among other things, dismissing this action without prejudice because Petitioner Matthew Antoine Canady’s petition under 28 U.S.C. § 2241 is barred by the exclusive-remedy rule within 28 U.S.C. § 2255(e), which requires petitioners to challenge their conviction or sentence under § 2255 unless the § 2255 remedy is “inadequate or ineffective.” (See id. at 4.) The R&R reasons that this rule applies to Canady because nothing prevented him from making his § 2241 arguments in previous challenges to his sentence. (See id.) Canady objects to this conclusion and argues that his current arguments are based on United States v. Resinos, 631 F.3d 886, 888 (8th Cir. 2011), which issued after Canady’s direct appeal and first § 2255 motion. (See Dkt. No. 12 at 1, 3.) Because of this, he contends that relief under § 2255 “is inadequate to test the legalities of his conviction and sentence.” (Id. at 3.) In response, the Government asks the Court to adopt the R&R in its entirety. (See Dkt. No. 13.) After reviewing the R&R, Canady’s objection, and the record, the Court agrees with the R&R’s recommended disposition. See 28 U.S.C. § 636(b)(1). The petitioner bears the burden of showing that the § 2255 remedy is inadequate or effective. Lopez-Lopez v. Sanders, 590 F.3d 1 905, 907 (8th Cir. 2010). The § 2255 remedy is not inadequate or effective if the petitioner previously had “an unobstructed procedural opportunity to present his claim.” Abdullah v. Hedrick, 392 F.3d 957, 963 (8th Cir. 2004). In addition, the § 2255 remedy is not inadequate or ineffective “merely because § 2255 relief has already been denied, or because [the] petitioner has been denied permission to file a second or successive § 2255 motion, or because a second or successive § 2255 motion has been dismissed.” United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (internal citations omitted). Accordingly, if the petitioner could have or actually raised an issue in an earlier § 2255 motion, then the petitioner cannot raise the issue again in a § 2241 petition, even if the petitioner is procedurally barred from again seeking relief under § 2255. See Abdullah, 392 F.3d at 963; Hill v. Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003). As the R&R points out, Canady’s § 2241 arguments appear to have been the subject of his direct appeal to the Eighth Circuit Court of Appeals. See United States v. Canady, 350 F. App’x 88, 88-89 (8th Cir. 2009) (affirming the sentence). He filed his first § 2255 motion in 2010, see Motion Under 28 U.S.C. § 2255, Canady v. United States, No. 4:10-CV-616 (JAJ), (S.D. Iowa Dec. 30, 2010), Dkt. No. 1, and his second § 2255 motion in 2012, see Motion to Vacate, Canady v. United States, No. 4:12-CV-59 (JAJ) (S.D. Iowa Feb. 7, 2012), Dkt. No. 1. Neither motion appears to have raised Canady’s exact § 2241 arguments. Even accepting, without deciding, that the decision in Resinos set forth a new interpretation of law in the Eighth Circuit applicable to Canady’s case, Resinos relied on several other Circuit cases dating as far back as 1993, if not also the Supreme Court’s decision in Pinkerton v. United States, 328 U.S. 640 (1946). See 631 F.3d at 888 & n.1. Canady could have presented arguments based on those cases in his first § 2255 motion. Canady also could have raised his § 2241 arguments in his second § 2255 motion, which he filed in 2012, after Resinos 2 was published, or in a request for authorization to file a second § 2255 motion. That his second motion was denied on procedural grounds for failure to obtain authorization, see Canady v. United States, No. 4:12-CV-59 (JAJ) (S.D. Iowa Feb. 8, 2017), does not render the § 2255 remedy inadequate or ineffective, see Hill, 349 F.3d at 1092. For these reasons, Canady has not shown that the § 2255 remedy is ineffective or inadequate in the circumstances of this case. See id. (concluding the same under similar circumstances); see also Cotrell v. Warden, 631 F. App’x 723, 726 (11th Cir. 2015) (unpublished) (affirming dismissal of a petition involving related claims and circumstances). Therefore, IT IS ORDERED THAT: 1. Defendant Matthew Antoine Canady’s Objection to the Report and Recommendation [Dkt. No. 12] is OVERRULED. 2. Defendant Matthew Antoine Canady’s petition for a writ of habeas corpus under 28 U.S.C. § 2241 [Dkt. No. 1] is DISMISSED WITHOUT PREJUDICE. 3. Defendant Matthew Antoine Canady’s motion for appointment of counsel [Dkt. No. 3] is DENIED. 4. Defendant Matthew Antoine Canady’s application to proceed in forma pauperis [Dkt. No. 2] is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: July 12, 2017. s/Joan N. Ericksen JOAN N. ERICKSEN United States District Judge 3

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