United States District Court, N.D. Georgia, Atlanta Division
SEAN AHERN, BOP Reg. # 02638-049, Petitioner,
WARDEN, USP Atlanta, Respondent
Sean Ahern, Petitioner, Pro se, Berlin, NH.
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION
JUSTIN S. ANAND, UNITED STATES MAGISTRATE JUDGE.
HABEAS CORPUS 28 U.S.C. § 2241
Petitioner, who was confined at the United States Penitentiary in Atlanta, Georgia when he initiated this action, seeks relief under 28 U.S.C. § 2241 and the savings clause of 28 U.S.C. § 2255(e). (Docs. 1, 3). Petitioner challenges the 210-month sentence he received as a career offender on March 28, 2002 in the United States District Court for New Hampshire, for bank robbery by force or violence in violation of 18 U.S.C. § 2113(a), and the consecutive 84-month sentence he received for violating 18 U.S.C. § 1924(c). He was resentenced to the same 294-month term of imprisonment on March 21, 2003. (Id.); see United States v. Ahern, No. 1:00-cr-148-SM-1 (D.N.H. Mar. 29, 2002), Docs. 69, 93. Petitioner filed a 28 U.S.C. § 2255 motion to vacate his sentence, which was denied on April 29, 2005. Ahern v. United States, No. 1:04-cv-474-SM, (D.N.H. Apr. 29, 2005), Doc. 9, aff'd, No. 05-1687 (1st Cir. Dec. 7, 2005), Doc. 21.
Rule 4 of the Rules Governing Section 2254 Cases--which also applies to Section 2241 cases, as provided in Rule 1(b)--allows for summary dismissal of a habeas petition that plainly reveals that relief is not warranted. See McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (stating that Rule 4 dismissal is appropriate when the petition " appears legally insufficient on its face"). Because Petitioner's claims do not qualify for savings clause treatment, IT IS RECOMMENDED that his habeas petition be DISMISSED.
I. The Savings Clause
The " savings clause" of 28 U.S.C. § 2255(e) allows a federal prisoner to bring a habeas corpus petition, seeking relief otherwise available only via a § 2255 motion to vacate his sentence, if it " appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). In the Eleventh Circuit, a petitioner may invoke the savings clause only when his § 2241 claim arises from a Supreme Court decision, issued " subsequent to his first § 2255 proceeding, " that at a minimum both applies retroactively to cases on collateral review and overturns controlling Circuit precedent that had " squarely foreclosed" the claim in petitioner's trial court proceedings, on direct appeal, and in his first § 2255 motion. Bryant v. Coleman, 738 F.3d 1253, 1274 (11th Cir. 2013). " [W]hether the savings clause in § 2255(e) may open the portal to a § 2241 petition is a threshold jurisdictional issue that must be decided before delving into the merits of the petitioner's claim and the applicable defenses." Id. at 1262 (internal quotations omitted). " The burden of demonstrating the inadequacy or ineffectiveness of the § 2255 remedy rests squarely on the petitioner." Turner v. Warden Coleman FCI, 709 F.3d 1328, 1333 (11th Cir. 2013).
In Bryant, the Eleventh Circuit noted " two different [types] of challenges to which the savings clause may conceivably apply that are not covered by [the] § 2255(h)" provision for second or successive § 2255 motions, one of which involves " a fundamental defect in sentencing [when] . . . the petitioner had no opportunity to obtain judicial correction of that defect earlier." Bryant, 738 F.3d at 1271 (internal quotations omitted). The Bryant court noted that these types of sentencing claims involve " pure Begay errors, [that is, ] errors in the application of the 'violent felony' enhancement, as defined in 18 U.S.C. § 924(e)(2)(B), resulting in a higher statutory minimum and maximum sentence under § 924(e)."  Id. at 1268; see id . at 1274 (noting that the Bryant petitioner had raised a " pure § 924(e)- Begay error claim of illegal detention above the [10-year] statutory maximum penalty in § 924(a)" by challenging one of the predicates for his Armed Career Criminal Act (" ACCA") sentence).
II. The Petition
Petitioner asserts that his 210-month sentence as a career offender violates Begay, United States v. Archer, 531 F.3d 1347 (11th Cir. 2009), and Bryant because his two prior convictions for second degree reckless assault do not qualify as violent crimes and thus he is not a career offender. (Doc. 1 at 1). Petitioner also cites Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in support of his claims. (Doc. 1 at 1). Petitioner asserts that his 7-year sentence for " brandishing" a firearm exceeds " the maximum penalty prescribed by law" and that he should have received no greater than a 5-year sentence for his firearm conviction based on the evidence presented to the jury. (Id. at 1-2). " [P]etitioner asks for review to challenge his sentence and the use of two highly divisible statutes under New Hampshire State Law for Second Degree (Class B) 'reckless' assault and a sentence in excess of the statutory maximum." (Id. at 2).
III. Petitioner's Claims May Not Proceed Under The Savings Clause
A. Petitioner's 210-Month Sentence for Bank Robbery
The maximum sentence for bank robbery " by force and violence, or by intimidation, " is 240 months. 18 U.S.C. § 2113(a). Petitioner's 210-month sentence does not exceed that 240-month statutory maximum, which applies whether or not Petitioner's prior assault convictions qualify as violent crimes to support a finding that he is a career offender. Petitioner thus may not challenge his 210-month sentence in this § 2241 proceeding. See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) ( en banc ) (" What we do decide is that the savings clause does not authorize a federal prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding the statutory maximum."). In White v. Warden, FCC Coleman - Low, 516 Fed.Appx. 917 (11th Cir. 2013), the appellant brought a § 2241 saving clause challenge to his 360-month drug trafficking sentence, arguing that " the sentencing court improperly applied the career offender enhancement because he had never been sentenced to more than one year imprisonment for a drug offense." Id. at 918. The Eleventh Circuit held:
The district court correctly concluded that [Appellant] cannot bring this
petition under § 2241. He challenges only the length of his sentence, but it did not exceed the statutory maximum. Even if there was error at his sentencing, the savings clause does not apply to [his] claims and his § 2241 petition was not properly before the district court.
Id. at 919; see Wallace v. Warden, FCC Coleman-USP I, No. 5:12-cv-309, at *1, 4 (M.D. Fla. July 1, 2014) (citing Gilbert and rejecting petitioner's § 2241 savings clause challenge to his life sentences for drug trafficking).
B. Petitioner's 7-Year Sentence for Brandishing a
If a defendant uses or carries a firearm " during and in relation to any crime of violence, " or if " in furtherance of any such crime, [he] possesses a firearm, " he shall " be sentenced to a term of imprisonment of not less than 5 years, " and " if the firearm is brandished, [he shall] be sentenced to a term of imprisonment of not less than 7 years." 18 U.S.C. § 924(c)(1)(A)(i)-(ii) (emphasis added). To the extent that Petitioner attempts to rely upon Alleyne to challenge his 7-year sentence because the judicial finding that he brandished a firearm increased his mandatory minimum sentence from 5 to 7 years, he may not do so. Such an attempt does " not satisfy the requirements of section 2255's savings clause" because (1) the Supreme Court's Alleyne holding merely extends--to a defendant's statutory minimum sentence--its Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) holding that a defendant's sentence must not exceed the statutory maximum established by the jury's findings, see United States v. Son, 553 Fed.Appx. 949, 954 (11th Cir. 2014) (stating that in Alleyne " the Supreme Court extended Apprendi's holding to facts that increase the mandatory minimum prescribed by a statute"); and (2) " Apprendi does not apply retroactively on collateral review, " ...