United States District Court, N.D. Florida, Panama City Division
CALVIN B. MCHENRY, Petitioner,
v.
NICOLE ENGLISH, Warden, FCI Marianna, Respondent.
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
Before
the court is Calvin McHenry's petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2241. (Doc. 1). The
government responded in opposition to the petition (doc. 8)
and petitioner filed a reply (doc. 11). The parties also
submitted supplemental briefs at the court's request.
(Docs. 15, 18). The matter is referred to the undersigned
Magistrate Judge for a report and recommendation pursuant to
28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After
reviewing the petition, the undersigned concludes it should
be dismissed for lack of jurisdiction.[1]
BACKGROUND
AND PROCEDURAL HISTORY
On
February 13, 2001, a grand jury in the U.S. District Court
for the Southern District of Georgia indicted petitioner for
possession of a firearm by a convicted felon, a violation of
18 U.S.C. § 922(g)(1). (Doc. 8-1, p. 10-11). Because
petitioner had 3 prior felony convictions, the government
sought an enhanced sentence under the Armed Career Criminal
Act (“ACCA”). (Id.); see 18
U.S.C. § 924(e) (stating a person found guilty of
violating § 922(g) who has 3 previous convictions
“for a violent felony or a serious drug offense, or
both, committed on occasions different from one
another” is subject to a mandatory 15-year prison
sentence).
On
April 6, 2001, petitioner pleaded guilty to the sole count of
the indictment, admitting he possessed a firearm and had 3
prior violent felony convictions. (Doc. 8-1, p. 14, 16-27,
57). He was sentenced on June 18, 2001, to 220 months'
imprisonment and 5 years of supervised release. (Doc. 8-1, p.
29, 50, 58-59).
Petitioner
appealed his sentence to the U.S. Court of Appeals for the
Eleventh Circuit, arguing: “(1) that the district court
improperly relied upon hearsay evidence in enhancing his
sentence as an armed career criminal under 18 U.S.S.G. §
4B1.4, and (2) that the district court failed to make
specific findings as to the reliability of the hearsay
evidence.” (Doc. 8-2, p. 3-4). The Eleventh Circuit
affirmed on November 30, 2001, finding “no plain error
in the district court's factual findings with regard to
the enhancement of McHenry's sentence.” (Doc. 8-2,
p. 3-8).
On
December 16, 2002, petitioner filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(Doc. 8-2, p. 11-36). In the motion, he claimed: (1) his
sentence was improperly enhanced under § 4B1.4 of the
federal sentencing guidelines because “the trial court
never found beyond the preponderance of evidence that the gun
was used or possessed in connection with another felony
offense”; and (2) counsel was ineffective for failing
to raise the issue at sentencing or on direct appeal. (Doc.
8-2, p. 19-20). The motion was denied on February 3, 2003.
(Doc. 8-2, p. 38-41).
On
December 2, 2014, petitioner filed this petition for writ of
habeas corpus under 28 U.S.C. § 2241, claiming he should
not be subject to the 15-year mandatory prison sentence
prescribed in 18 U.S.C. § 924(e) because his prior
felony convictions did not qualify as violent felonies. (Doc.
1). He argued the sentencing court failed to examine the
statutory elements of his 3 felony convictions under Georgia
law to determine whether the convictions qualified as violent
felonies under § 924(e). (Id., p. 5-7).
Relatedly, petitioner asserted the sentencing court erred by
relying on police incident reports-as reflected in the
presentence investigation report-to determine the convictions
were violent felonies. (Id., p. 4, 6-7). Based upon
the claim he was incorrectly sentenced under the ACCA, he
requested that the sentence be vacated. (Id., p. 9,
12). Petitioner contended he could pursue such relief through
a § 2241 petition because he satisfied 28 U.S.C. §
2255's “saving clause.” See 28
U.S.C. § 2255(e) (“An application for a writ of
habeas corpus in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to [§ 2255], shall
not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his
detention.”)
The
government responded in opposition to the petition. (Doc. 8).
The government argued petitioner could not proceed under the
saving clause because, under the test set forth in Bryant
v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir
2013), he failed to show: (1) his arguments were squarely
foreclosed by Eleventh Circuit precedent during his
sentencing, direct appeal, or first § 2255 proceeding;
and (2) that a retroactive decision of the Supreme Court
overturned that precedent. (Id., p. 4-5).
The
government further argued that each of petitioner's prior
felony convictions qualified as violent felonies under 18
U.S.C. § 924(e). (Id., p. 5-11). The government
asserted: (1) petitioner's 1989 burglary conviction
qualified as a violent felony because it constituted a
“generic” burglary under the ACCA (id.,
p. 7-9); (2) petitioner's 1990 aggravated assault
conviction qualified as a violent felony because it
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another” (id., p. 9-11); and (3)
petitioner's 1986 robbery conviction qualified as a
violent felony under the ACCA's residual clause
(id., p. 6-7). The residual clause provided that a
felony qualified as a violent felony under the ACCA if it
“involve[d] conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii).
After
the government filed its response to the petition, the
Supreme Court decided Johnson v. United States, __
U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In
Johnson, the defendant argued his conviction under
Minnesota law for unlawful possession of a short-barreled
shotgun did not qualify as a violent felony under the
residual clause. Id. at 2556. In addition, the Court
considered whether the residual clause violated “the
Constitution's prohibition of vague criminal laws.”
Id.
The
Court held “that imposing an increased sentence under
the residual clause of the Armed Career Criminal Act violates
the Constitution's guarantee of due process”
because “the indeterminacy of the wide-ranging inquiry
required by the residual clause both denies fair notice to
defendants and invites arbitrary enforcement by
judges.” Id. at 2557, 2563. The Court noted
“[t]wo features of the residual clause conspire to make
it unconstitutionally vague.” Id. at 2557.
First, “the residual clause leaves grave uncertainty
about how to estimate the risk posed by a crime”
because “it ties the judicial assessment of risk to a
judicially imagined ‘ordinary case' of a crime, not
to real-world facts or statutory elements.”
Id. The Court described the inherent difficulty in
evaluating the behavior and effects the “idealized
ordinary case of [a] crime” involves and found
“[t]he residual clause offers no reliable way to choose
between competing” judicial assessments of the
“ordinary case.” Id. at 2557-58. Second,
“the residual clause leaves uncertainty about how much
risk it takes for a crime to qualify as a violent
felony.” Id. at 2558. The Court concluded:
“By combining indeterminacy about how to measure the
risk posed by a crime with indeterminacy about how much risk
it takes for the crime to qualify as a violent felony, the
residual clause produces more unpredictability and
arbitrariness than the Due Process Clause tolerates.”
Id. The Court noted its “repeated attempts and
repeated failures to craft a principled and objective
standard out of the residual clause confirm its hopeless
indeterminacy.” Id.
In
light of the Supreme Court's decision in
Johnson-and the government's assertion that one
of McHenry's convictions qualified as a violent felony
under the ACCA's residual clause-the court directed the
parties to file briefs addressing Johnson's
effect on petitioner's § 2241 petition for writ of
habeas corpus. (Doc. 13). Petitioner argued Johnson
is a retroactive decision that entitled him to relief under
the saving clause. (Doc. 15). In response, the government
contended Johnson did not affect the disposition of
this § 2241 petition because petitioner remained
“unable to demonstrate that the typical post-conviction
remedy provided by 28 U.S.C. § 2255 [was]
‘inadequate or ineffective[.]'” (Doc. 18, p.
1). Specifically, the government argued that claims based on
new constitutional rules-like the one announced in
Johnson-could be raised in an application to file a
second or successive § 2255 motion. (Id., p.
2-4); see 28 U.S.C. § 2255(h)(2) (providing
that a “[a] second or successive motion must be
certified . . . by a panel of the appropriate court of
appeals to contain . . . a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable”). The
government suggested relief under the saving clause is
reserved, for example, for claims based on a new retroactive
construction of the terms of a statute or treaty.
(Id.).
Because
Johnson was decided on direct review, its effect on
collateral attacks of ACCA sentences was initially unclear.
In In re Rivero, 797 F.3d 986 (11th Cir. 2015), the
Eleventh Circuit addressed the effect of Johnson on
a second or successive motion to vacate filed under 28 U.S.C.
§ 2255. The petitioner in Rivero asserted
“he was sentenced as a career offender under mandatory
Sentencing Guidelines because his prior conviction for
attempted burglary was a ‘crime of violence' under
the residual clause of section 4B1.2(a)(2) of the Sentencing
Guidelines.” Id. at 988-89. Although the
Eleventh Circuit determined “Johnson announced
a new substantive rule of constitutional law, ” the
court concluded the Supreme Court had not expressly held
Johnson to be retroactive and “[n]o
combination of holdings of the Supreme Court
‘necessarily dictate' that Johnson ...