United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
R. STAN BAKER UNITED STATES MAGISTRATE JUDGE
Petitioner Leroy Lee, Jr. ("Lee"), who is currently incarcerated at the Federal Correctional Institution in Yazoo City, Mississippi, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 while he was housed at the Federal Correctional Facility in Jesup, Georgia. (Doc. 1.) Respondent filed a Motion to Dismiss. (Doc. 11.) Lee failed to file a Response to the Motion, despite asking for and receiving an extension of time to do so. (Docs. 13, 14.) For the reasons which follow, it is my RECOMMENDATION that Respondent's Motion to Dismiss be GRANTED, Lee's Petition be DISMISSED, and this case be CLOSED
Lee pleaded guilty, in the Middle District of Georgia, to: armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A)(ii). (Doc. 11-1, pp. 2, 5.) Lee's plea agreement stated that he faced a minimum mandatory sentence of 84 months' imprisonment on the firearm count. Lee agreed with the factual statement contained in the plea agreement that the bank was robbed by someone "brandishing" a firearm, and he admitted to robbing the bank "at gunpoint." (Case No. CR607-4, Doc. 25M.D. Ga. Apr. 25, 2007.) Lee was sentenced to 100 months' imprisonment on the armed robbery count and to 84 months' imprisonment on the firearm count to be served consecutively to the armed robbery sentence for a total sentence of 184 months' imprisonment. (Doc. 11, p. 2.) Lee's counsel filed an Anders v. California, 386 U.S. 738 (1967), brief. The Eleventh Circuit Court of Appeals agreed there were no arguable issues of merit for appeal and affirmed Lee's convictions and sentence. (Case No. CR607-4, Doc. 42 M.D. Ga. Apr. 18, 2008.)
On September 3, 2013, Lee filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Middle District of Georgia and asserted, in relevant part, the district court improperly enhanced his sentence on the firearm offense without a finding from a jury. The district court determined Lee's petition was untimely filed. (Docs. 11-3, 11-4.) Lee did not file an appeal.
In his instant Petition, filed on October 2, 2014, Lee asserts he is actually innocent of the application of Section 924(c)'s enhancement on his sentence, as he entered into a plea agreement with the Government unknowingly and involuntarily. Lee states he must proceed pursuant to Section 2241 because his "claims are clearly barred from a 2255 motion proceeding" based on the procedural restrictions applicable to Section 2255 motions. (Doc. 1, p. 2.) Lee avers his plea for violating Section 924(c) was interpreted as "brandishing" being a sentencing factor and not an element of the crime he actually committed. According to Lee, he is actually innocent of the brandishing element of the crime and the statutory minimum sentence accompanying that element. Lee asserts the Government had to prove beyond a reasonable doubt he brandished a firearm rather than merely used one in any other way described in Section 924(c)(l)(A)(ii). Lee maintains he should have been sentenced to 60 months' imprisonment on the Section 924(c) conviction rather than the 84 months' imprisonment he received. Lee bases his assertions on the decision in Alleyne v. United States, __U.S.__, 133 S.Ct. 2151 (June 17, 2013).
Respondent asserts Section 2241 relief is not available to Lee because he does not satisfy the savings clause of Section 2255. Respondent maintains the remedy afforded by Section 2255 is not inadequate or ineffective merely because a prisoner cannot comply with that Section's procedural requirements, such as being barred by the statute of limitations period or based on the bar on filing second or successive motions.
I. Section 2241 Petition
Ordinarily, an action in which an individual seeks to collaterally attack "the validity of a federal sentence must be brought under § 2255, " in the district of conviction. 28 U.S.C. § 2255(a); Turner v. Warden Coleman FCI (Medium). 709 F.3d 1328, 1333 (11th Cir. 2013). To utilize Section 2241 to attack the validity of a federal sentence or conviction, a petitioner must show that the remedy afforded under Section 2255 is "inadequate or ineffective" to challenge the validity of a conviction and/or sentence. Taylor v. Warden, FCI Marianna, 557 F.App'x 911, 913 (11th Cir. 2014).
The United States Court of Appeals for the Eleventh Circuit provided two "challenges to which the savings clause" is applicable. Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2013). First:
[t]he savings clause of § 2255 applies to a claim when: 1) that claim is based upon a retroactively applicable Supreme Court decision; 2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner's trial, appeal, or first § 2255 motion.
Id. (alteration in original) (quoting Wofford v. Scott 177 F.3d 1236, 1244 (11th Cir. 1999)). Second, the savings clause may apply when "a fundamental defect in sentencing occurred and the petitioner had not had an opportunity to obtain judicial correction of that defect earlier." Id. (citations omitted) (internal quotation marks omitted).
The Eleventh Circuit "retreated from the purported three-factor test enumerated in Wofford, calling it only dicta, and explained] that [t]he actual holding of the Wofford decision . . . is simply that the savings clause does not cover sentence claims that could have been raised in earlier proceedings." Turner, 709 F.3d at 1333 (alteration in original) (internal citation and punctuation omitted). However, Wofford's holding establishes two necessary conditions- although it does not go so ...