Opinion
CV 23-6033-CAS(E)
09-19-2023
GEORGE RILEY, III, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, ET AL., Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
INTRODUCTION
On June 21, 2023, Petitioner, a federal prisoner currently incarcerated at the United States Penitentiary in Victorville, filed in the United States District Court for the Middle District of Florida a "Petition for a Writ of Habeas Corpus By a Person in Federal Custody (28 U.S.C. § 2241)" ("Petition"). On the same date, Petitioner filed therein a "Motion to Hold § 2241 Proceedings in Abeyance Pending Outcome of Successive § 2255 Proceedings" ("Motion"). On July 24, 2023, the Middle District of Florida transferred the case to this Court.
In light of the United States Supreme Court's recent decision in Jones v. Hendrix, 143 S.Ct. 1857 (2023) ("Jones"), the Magistrate Judge recommends that the Motion be denied and the Petition be denied and dismissed without prejudice for lack of jurisdiction.
BACKGROUND
On March 30, 2001, a jury in the Middle District of Florida found Petitioner guilty of several offenses, including attempted armed bank robbery in violation of 18 U.S.C. section 2113(a) (Count 5), and possession of a firearm during and in relation to attempted armed bank robbery in violation of 18 U.S.C. section 924(c) ("section 924(c)") (Count 6) (see Docket in United States v. Riley, United States District Court for the Middle District of Florida case number 6:00-cr-38-PCG-DCI ("USA v. Riley"), Dkt. 86; see also id., Dkt. 143, p. I).On June 25, 2001, the trial court sentenced Petitioner to 1,011 months in prison, including a mandatory consecutive 300-month sentence on Count Six (id., Dkt. 100; see also id., Dkt. 175, p. 1).
Section 924(c) "authorizes heightened criminal penalties for using or carrying a firearm 'during and in relation to,' or possessing a firearm 'in furtherance of,' any federal 'crime of violence or drug trafficking crime.'" United States v. Davis, 139 S.Ct. 2319, 2324 (2019) (quoting section 924(c)(1)(A)). Section 924(c)(3) defines "crime of violence" to mean:
. . . an offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.Section 924(c)(3)(A) is known as the "elements clause," and Section 924(c)(3)(B) is known as the "residual clause." See United States v. Davis, 139 S.Ct. at 2324.
On August 21, 2002, the United States Court of Appeals for the Eleventh Circuit affirmed (id., Dkt. 125). On December 16, 2002, the United States Supreme Court denied certiorari (id., Dkt. 131, p. 2).
On January 6, 2004, Petitioner filed a "Motion to Vacate, etc." pursuant to 28 U.S.C. section 2255 ("section 2255"), alleging various trial and sentencing errors ("First 2255 Motion") (id., Dkt. 128). On March 31, 2005, the trial court denied the First 2255 Motion (id., Dkt. 131).
On June 24, 2016, Petitioner filed a second "Motion to Vacate, etc." pursuant to section 2255 ("Second 2255 Motion") (id., Dkt. 142), which Petitioner subsequently amended (id., Dkt. 152). Therein, Petitioner sought to invalidate the 300-month sentence imposed on Count 6 based on Johnson v. United States, 576 U.S. 591, 596 (2015) ("Johnson"), and United States v. Davis, 139 S.Ct. 2319, 2336 (2019) ("Davis") (id., Dkt. 152, pp. 5, 11). In Johnson and Davis, the Supreme Court held that the residual clause of section 924(c)(3)(B) and another similarly-worded clause were unconstitutionally vague.
The Court takes judicial notice of the dockets of, and the documents filed in, Petitioner's criminal and collateral proceedings mentioned herein, available on the PACER database at https://pacer.uscourts.gov. See Porter v. Ollison, 620 F.3d 952, 954-55 n.l (9th Cir. 2010) (federal court may take judicial notice of court proceedings).
On April 30, 2020, the trial court denied Petitioner's Second 2255 Motion (id., Dkt. 154, p. 1). The trial court stated: "Subsequent to Davis, the Eleventh Circuit reiterated that attempted bank robbery 'is a crime of violence within the meaning of § 924(c)(3)(A)'" (id., p. 3) (quoting United States v. Harvey, 791 Fed.Appx. 171, 172 (11th Cir. 2020), cert, denied, 141 S.Ct. 2790 (2021)). The trial court concluded that, "under binding precedent, attempted bank robbery qualifies as a crime of violence under the elements clause of § 924(c)(3)(A)" and, therefore, Davis did not impact Petitioner's sentence on Count Six (id.).
On June 20, 2023, Petitioner filed a third "Motion to Vacate, etc." pursuant to section 2255 ("Third 2255 Motion") (id., Dkt. 174, p. 4). The Third 2255 Motion seeks to challenge the validity of Petitioner's sentence on Count Six based on Davis and United States v. Taylor, 142 S.Ct. 2015 (2022) ("Taylor") (id.). Taylor held that an attempted Hobbs Act robbery is not a crime of violence under section 924(c)(3)(A)'s elements clause.
Also on June 20, 2023, Petitioner filed an application with the Eleventh Circuit for authorization to proceed in the sentencing court with the Third Section 2255 Motion (id., Dkt. 175). On July 5, 2023, the Eleventh Circuit denied Petitioner's application (see Docket in In re: George Riley, III, United States Court of Appeals for the Eleventh Circuit case number 23-12026 ("In re Riley"), Dkt. 2, p. 8).
PETITIONER'S CLAIM
The Petition seeks to invalidate the 300-month consecutive sentence imposed on Count Six for possessing a firearm during and in relation to attempted armed bank robbery in violation of section 924(c). Petitioner argues that, pursuant to Taylor, attempted armed bank robbery "is not a crime of violence under 924(c)(3)(A)'s elements clause." Petitioner further argues that "the Supreme Court has held that 924(c)(3)(B)'s residual clause is unconstitutionally vague," apparently referencing Davis (see Petition, p. 6).
On June 29, 2016, the Eleventh Circuit granted Petitioner permission to proceed with the Second 2255 Motion (id., Dkt. 146).
DISCUSSION
I. Petitioner's Motion to Hold These Proceedings in Abeyance Should Be Denied.
In the Motion, Petitioner characterizes the instant Petition as a "placeholder," filed on the one-year anniversary of Taylor to avoid an untimeliness bar. Petitioner asks the Court to hold these proceedings in abeyance pending: (1) the Supreme Court's decision in Jones; (2) the Eleventh Circuit's determination of Petitioner's application to file a successive section 2255 motion; and (3) the trial court's ruling on Petitioner's Third 2255 Motion, which also challenges Petitioner's sentence on Count 6 based on Davis and Taylor (Motion, pp. 1, 4-5).
"[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936). The decision whether to grant a stay is committed to the court's "sound discretion" and the court weighs "the competing interests which will be affected by the granting or refusal to grant a stay . . . ." CMAX, Inc, v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
Petitioner's arguments in support of the Motion do not justify holding these proceedings in abeyance. The Supreme Court issued its decision in Jones on June 22, 2023. See Jones, 143 S.Ct. at 1857. The Eleventh Circuit dismissed Petitioner's application to file a successive section 2255 motion on July 5, 2023 (In re Riley, Dkt. 2, p. 8). There is no just reason to stay this case until after the sentencing court decides the Third 2255 Motion. As explained below, this Court lacks jurisdiction over the Petition, and the Petition therefore should be denied and dismissed without prejudice. The disposition of this action will not affect the proceedings in the sentencing court. Therefore, the denial of a stay will not prejudice Petitioner. The Motion should be denied.
II. The Petition Should Be Denied and Dismissed for Lack of Jurisdiction.
"[A] federal prisoner who collaterally attacks his sentence ordinarily must proceed by a motion in the sentencing court under § 2255, rather than by a petition for a writ of habeas corpus under § 2241." Jones, 143 S.Ct. at 1863; see also 28 U.S.C. §§ 2255(a) and (e). However, section 2255's "saving clause" allows a federal prisoner to proceed under section 2241 if the prisoner establishes that the remedy afforded by section 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e).
In Jones, the Supreme Court clarified that the saving clause preserves recourse to section 2241 only in cases where "unusual circumstances make it impossible or impracticable to seek relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a sentence." Jones, 143 S.Ct. at 1868; see also id. at 1866 (providing as examples of such "unusual circumstances" "the sentencing court's dissolution" and the prisoner's inability to attend a hearing in the trial court). The saving clause "does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent [the Antiterrorism and Effective Death Penalty Act's] restrictions on second or successive § 2255 motions by filing a § 2241 petition." Id. at 1864. "[T]he saving clause does not authorize ... an end-run around" the "two -and only two - conditions in which a second or successive § 2255 motion may proceed" as described in section 2255(h). Id. at 1868. Thus, "[t]he inability of a prisoner with a statutory claim to satisfy [the] conditions of [section 2255(h)] does not mean that he can bring his claim in a habeas petition under the savings clause. It means that he cannot bring it at all." Id. at 1869.
The Petition does not bear consecutive page numbers. The Court uses the ECF pagination when referring to the Petition.
Petitioner, like the petitioner in Jones, seeks to bring a statutory challenge in reliance on intervening changes in statutory interpretation. There exist no "unusual circumstances" making it "impossible or impractical for [Petitioner] to seek relief from the sentencing court." Jones, 143 S.Ct. at 1868. Even though the sentencing court denied Petitioner's Second 2255 Motion, and even if the sentencing court ultimately denies Petitioner's Third 2255 Motion, section 2255 would not be "unavailable" to Petitioner within the meaning of the saving clause. See id. at 1864; Porter v. Trate, 2023 WL 5155748, at *2-3 (E.D. Cal. Aug. 10, 2023), adopted, 2023 WL 5807036 (E.D. Cal. Sept. 7, 2023) (saving clause does not permit habeas jurisdiction over Taylor/Davis claims). Accordingly, Petitioner cannot proceed under section 2241, and the Petition should be denied and dismissed without prejudice for lack of jurisdiction.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying the Motion; and (3) directing that Judgment be entered denying and dismissing the Petition without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.