Opinion
CIVIL ACTION FILE NO. 1:18-CV-5057-ODE-JKL CRIMINAL ACTION NO. 1:96-CR-0472-ODE-JKL
11-06-2018
SHAWN STANLEY GILREATH, BOP ID # 47555-019, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
HABEAS CORPUS 28 U.S.C. § 2241 FINAL REPORT AND RECOMMENDATION
Movant filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 in the Ninth Circuit Court of Appeals. [Doc. 385.] The Ninth Circuit construed the petition
as a motion to correct, vacate, and/or set-aside pursuant to 28 U.S.C. § 2255. [Doc. 384.] Although Petitioner styles his action as being brought under § 2241, it is apparent that he seeks relief that is cognizable under § 2255.
By judgment entered July 15, 1998, Petitioner was convicted in this Court for attempted armed bank robbery with kidnapping pursuant to 18 U.S.C. § 2113(a)(d) and (e) and use of a firearm during a crime of violence pursuant to 18 U.S.C. § 924(c). Petitioner previously filed a § 2255 motion in 2007, which was denied as untimely. [Docs. 282, 313, 318.] Petitioner filed a second § 2255 motion in 2011 and 2012, which was denied on the basis that it was successive. [Docs. 335, 338, 351, 356.] Petitioner filed a third § 2255 motion in 2018 that was also denied as successive. [Doc. 376, 378, 382.]
In his current petition, Petitioner again challenges his conviction arguing that his conviction under 18 U.S.C. § 924(c) is invalid in light of the Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held that the definition of "crime of violence" in the residual clause of 18 U.S.C. § 16(b) is unconstitutionally vague. Movant may not file a second or successive § 2255 motion without first obtaining permission to do so from the United States Court of Appeals for the Eleventh Circuit. See 28 U.S.C. § 2255(h). Without such prior authorization, this Court "lacks jurisdiction to consider a second or successive motion." Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). Movant has not sought permission to file the present motion. Accordingly, the undersigned RECOMMENDS that this case be DISMISSED for lack of jurisdiction.
The undersigned notes that while the residual clauses of § 16(b) and § 924(c)(3)(B) use identical language, Petitioner's conviction for attempted armed robbery qualifies as a crime of violence under § 924(c)(3)(A)'s use-of-force clause, which has not been called into question by Dimaya. See In re Hines, 824 F.3d 1334, 1336-37 (11th Cir. 2016) (holding that armed bank robbery under 18 U.S.C. § 2331(a) and (d) "clearly meets the requirement" for a crime of violence under the "use-of-force" clause in § 924(c)). --------
In the absence of subject-matter jurisdiction, 28 U.S.C. § 2253(c) does not apply to this case, and the undersigned offers no recommendation regarding a Certificate of Appealability. See Walker v. United States, 367 F. App'x 67, 68-69 (11th Cir. 2010) (citing Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004)).
The Clerk is DIRECTED to terminate the referral of this case to the undersigned.
SO RECOMMENDED this 6th day of November, 2018.
/s/_________
JOHN K. LARKINS III
UNITED STATES MAGISTRATE JUDGE