United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Linda T.
Walker's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
deny Petitioner Tony James Garner's
(“Petitioner”) 28 U.S.C. § 2241 petition for
a writ of habeas corpus  (“Section 2241
the second 2241 Petition that Petitioner has filed on the
same issue. In Garner v. Drew, No. 1:15-cv-255-WSD
(N.D.Ga. Mar. 7, 2016), the Court dismissed Petitioner's
petition under Section 2241 for lack of jurisdiction. The
Court found that Petitioner failed to establish that the
“savings clause” applied to his claim. The Court
denied Petitioner's motion for reconsideration.
then filed in the Eleventh Circuit an application to file
another Section 2255 motion challenging the enhancement of
his sentence under the ACCA, arguing that the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) applied. On June 1, 2016, the Eleventh
Circuit denied Petitioner's application, finding that
Johnson did not apply to Petitioner's case.
Petitioner then filed his second Section 2241 Petition in
this Court, asserting the same arguments that he asserted in
his first Section 2241 petition and in his application to the
6, 2016, the Magistrate Judge issued her R&R. The
Magistrate Judge found that Petitioner's Section 2241
Petition should be dismissed for the same reasons the Court
dismissed Petitioner's first petition. Petitioner did not
file any objections to the R&R.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where, as here, no party has objected to
the report and recommendation, the Court conducts only a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
affirmatively show that the savings clause applies to his
claim, Petitioner must establish:
(1) throughout his sentencing, direct appeal, and first
§ 2255 proceeding, our Circuit's binding precedent
had specifically addressed [Petitioner's] distinct prior
state conviction that triggered § 924(e) and had
squarely foreclosed [Petitioner's] § 924(e) claim
that he was erroneously sentenced above the 10-year statutory
maximum penalty in § 924(a); (2) subsequent to his first
§ 2255 proceeding, the Supreme Court's decision in
[Descamps], as extended by this Court to
[Petitioner's] distinct prior conviction, overturned our
Circuit precedent that had squarely foreclosed
[Petitioner's] § 924(e) claim; (3) the new rule
announced in [Descamps] applies retroactively on
collateral review; (4) as a result of
[Descamps'] new rule being retroactive,
[Petitioner's] current sentence exceeds the 10-year
statutory maximum authorized by Congress in § 924(a);
and (5) the savings clause in § 2255(e) reaches his pure
§ 924(e)-[Descamps] error claim of illegal
detention above the statutory maximum penalty in §
Bryant, 738 F.3d at 1262. “[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.” Bryant, 738 F.3d at 1262.
Court previously found that the savings clause does not apply
to Petitioner's claim, including because: (1) when
Petitioner was convicted, sentenced, and throughout his
direct appeal, there was no Eleventh Circuit precedent that
directly addressed whether the crime of third-degree burglary
under Alabama law constituted a “violent felony”
under the ACCA and that “squarely foreclosed”
Petitioner's claim, and (2) while United States v.
Howard, 742 F.3d 1334, 1349 (11th Cir. 2014), is a
binding Eleventh Circuit decision that supports
Petitioner's argument that his third-degree ...