United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Petitioner Tony James
Garner's Petition for Writ of Habeas Corpus (ECF No. 1).
Also pending before the Court is Garner's Motion to
Transfer Case Back to Original Jurisdiction (ECF No. 26). The
Petition and Motion are ripe for disposition, and no hearing
is necessary. See Local Rule 105.6 (D.Md. 2018). For
the reasons set forth below, the Court will dismiss the
Petition, deny Garner's Motion, and decline to issue a
Certificate of Appealability.
November 2003, Garner pleaded guilty to one count of
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g) (2018) in the United States District
Court for the Southern District of Alabama. (See
Pet. at 2, ECF No. 1). In 2004, Garner was sentenced to 327
months' imprisonment, with a sentence enhancement
pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1) (2018).
United States v. Garner, 1:03-cr-0095-WS-C, ECF No.
58 (S.D.Ala. May 1, 2007); (see also Nov. 6, 2018 R.
& R. [“R&R”] at 1, ECF No. 10). On
appeal, the United States Court of Appeals for the Eleventh
Circuit affirmed Garner's sentence. (See Pet. at
4; R&R at 1).
2006, Garner filed a Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (2018) in the
Southern District of Alabama. (R&R at 1-2). The court
denied Garner's motion on April 30, 2007. (See
Pet. at 4; R&R at 1-2).
January 26, 2015, Garner filed a Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (2018) in the United
States District Court for the Northern District of Georgia.
Garner v. Drew, 1:15-CV-255-WSD, 2016 WL 880529, at
*2 (N.D.Ga. Mar. 7, 2016). The court dismissed the petition
after finding that 28 U.S.C. § 2255(e)'s
“savings clause [did] not allow the Court to exercise
jurisdiction.” Id. at *4. For the savings
clause to apply to his claim, Garner was required to show,
among other things, that controlling Eleventh Circuit
precedent held that the crime of third-degree burglary under
Alabama law constituted a “violent felony” under
the ACCA, such that his claim would have been foreclosed when
he filed his first § 2255 motion. Id. at *3
(citing Bryant v. Coleman, 738 F.3d 1253, 1274 (11th
Cir. 2013)). The Court noted that when Garner was
“convicted, sentenced, and throughout his direct
appeal, there was no Eleventh Circuit precedent . . . that
‘squarely foreclosed' [his] claim.”
Id. Rather, “[i]t was only while
Petitioner's Motion to Vacate was pending that the
Eleventh Circuit held in United States v. Moody, 216
Fed.Appx. 95 (11th Cir. 2007), that third-degree burglary
under Alabama law constituted a ‘violent felony'
under the ACCA.” Id. In 2016, Garner sought
permission from the Eleventh Circuit to file a successive
§ 2255 motion, but the application was denied.
(See R&R at 2).
September 17, 2018, Garner filed a Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 in the United
States District Court for the District of South Carolina,
where he was incarcerated at the time. (ECF No. 1). In his
memorandum of law, Garner argued that he was wrongly
sentenced pursuant to the ACCA, relying on Johnson v.
United States, 135 S.Ct. 2551 (2015), which voided the
ACCA's residual clause, Descamps v. United
States, 570 U.S. 254 (2013), which refined the process
for determining whether a prior conviction qualifies as a
violent felony under the ACCA, and United States v.
Howard, 742 F.3d 1334 (11th Cir. 2014), which held, in
light of Descamps, that Alabama third-degree
burglary is not a qualifying predicate for purposes of the
ACCA. (Mem. Law Supp. Pet. Habeas Corpus at 4-7, ECF No.
1-1). Garner also argued that “[i]t [was] unclear from
the record which clause of the ACCA the district court
employed when it concluded that Garner's prior Alabama
third degree burglary convictions qualified as predicate
offenses.” (Id. at 7).
November 6, 2018, Magistrate Judge Paige Gossett issued a
Report and Recommendation as to Garner's § 2241
Petition. (ECF No. 10). Judge Gossett concluded that Garner
failed to show under the saving clause of § 2255(e) that
a § 2255 motion was inadequate or ineffective to test
the legality of his detention. (R&R at 3). Specifically,
Judge Gossett explained that although Howard
“held that under the ACCA, a conviction for
third-degree burglary in Alabama does not qualify as a
predicate burglary conviction, ” the “Supreme
Court has not held that Descamps applies
retroactively, and the Eleventh Circuit has not held that
Howard applied retroactively.” (Id.
at 4). Because Howard and Decamps are not
retroactive on collateral review, Judge Gossett opined that
Garner did not meet the standard to file a § 2241
petition, and his Petition should be summarily dismissed.
Order dated July 8, 2019, United States District Judge
Timothy M. Cain declined to adopt Judge Gossett's Report
and Recommendation, instead finding that the District of
South Carolina lacked jurisdiction to entertain Garner's
Petition because Garner was incarcerated at FCI Cumberland in
Maryland. (July 8, 2019 Order at 2, ECF No. 19). Garner's
Petition was then transferred to the United States District
Court for the District of Maryland. (See id. at 3;
ECF No. 20).
Motion to Transfer Case Back to Original
22, 2019, Garner filed a Motion to Transfer Case Back to the
Original Jurisdiction, asking this Court to return
Garner's habeas Petition to the District of South
Carolina. (ECF No. 26). Jurisdiction over a habeas corpus
petition lies in the federal district court where the
Petitioner's custodian is located. See Rumsfeld v.
Padilla, 542 U.S. 426, 434-35 (2004). Garner is a Bureau
of Prisons inmate presently housed at the Federal
Correctional Institution in Cumberland, Maryland (“FCI
Cumberland”), (see ECF No. 17), and is
therefore in the custody of the Warden at FCI Cumberland.
Thus, this Court has jurisdiction over Garner's Petition,
and Garner's Motion to Transfer Case Back to Original
Jurisdiction will be denied.
Petition for Writ of Habeas Corpus
brings his Petition for Habeas Corpus pursuant to 28 U.S.C.
§ 2241. “Generally, federal prisoners ‘are
required to bring collateral attacks challenging the validity
of their judgment and sentence by filing a motion to vacate
sentence pursuant to 28 U.S.C. § 2255.'”
Brooks v. Bragg, 735 Fed.Appx. 108 (4th Cir. 2018)
(quoting In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997) (en banc)); see also Toohey v. Wilson, 2018 WL
3130411, at *2 (E.D.Va. June 26, 2018) (a motion under §
2255 “‘provides the primary means of collateral
attack' on the imposition of a federal conviction and
sentence”). By ...