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Kilgore v. Meeks

United States District Court, D. South Carolina, Anderson/Greenwood Division

February 15, 2017

Bobby Gene Kilgore, Petitioner,
v.
Warden B J Meeks, Warden, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge

         This matter is before the Court on Respondent's motion to stay and motion for summary judgment. [Docs. 14, 26.] Petitioner is a federal prisoner who seeks relief pursuant to 28 U.S.C. § 2241. [Doc. 1.] Petitioner is represented by counsel. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on June 20, 2016. [Doc. 1.] On October 5, 2016, Respondent moved to stay the Petition. [Doc. 14.] On that same day, Petitioner filed a response opposing a stay. [Doc. 15.] On October 11, 2016, the Court entered an Order to Show Cause why the Court should not transfer the matter to the United States District Court for the Middle District of Florida. [Doc. 17.] On October 19, 2016, Petitioner responded, requesting that the Court not transfer this action. [Doc. 22.] On October 26, 2016, Respondent filed a response to the Order to Show Cause and a motion for summary judgment. [Docs. 25, 26.] On November 9, 2016, Petitioner filed a response in opposition to the motion for summary judgment. [Doc. 30.]

         Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion for summary judgment be granted.

         BACKGROUND

         Underlying Conviction, Appeal, and Previous Collateral Attack

         Following a guilty plea, Petitioner was sentenced in the United States District Court for the Middle District of Florida on January 10, 2007, for violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)-possession with intent to distribute five grams or more of cocaine. [Docs. 26-2 (USDC Fl. Middle, Criminal Docket); 29-1 (Presentence Investigation Report (“PSR”), filed under seal).] Petitioner was sentenced as a career offender under the United States Sentencing Guidelines (“the Guidelines”) § 4B1.1 based on two prior convictions: (1) Battery on a Law Enforcement Officer and (2) Possession of Cocaine with Intent to Sell/Deliver within 1, 000 Feet of a School. [Doc. 29-1 ¶ 28.] Petitioner's career offender classification raised his offense level, thus increasing Petitioner's sentencing range from 130-162 months to 188-235 months. [Docs. 1-3; 29-1 ¶¶ 27-31, 105.] Petitioner was sentenced to 188 months' imprisonment. [Doc. 26-2 at 6.]

         Petitioner filed a notice of appeal in January 2007. [Id.] Petitioner's direct appeal was dismissed by the United States Court of Appeals for the Eleventh Circuit on August 24, 2007. [Id. at 7.] On September 7, 2010, Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. [Id.] The motion was denied as untimely. [Doc. 1-5.] Subsequently, the Eleventh Circuit affirmed the denial of Petitioner's § 2255 motion. [Doc. 1-4.]

         On May 16, 2016, Petitioner sought leave of the Eleventh Circuit to file a second or successive § 2255 motion, asserting that he was entitled to relief under Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). [Doc. 1-3.] Specifically, Petitioner argued that his prior conviction for battery of a law enforcement officer no longer qualified as a “crime of violence” under the residual clause in § 4B1.2(a) of the Guidelines. [Id.] The Eleventh Circuit Court of Appeals denied Petitioner's application on June 6, 2016. [Doc. 1-2.]

         Instant Petition and Motion for Summary Judgment

         On June 20, 2016, Petitioner filed the instant § 2241 Petition. [Doc. 1.] In his Petition, Petitioner challenges the validity of his 188-month sentence based on Johnson, which held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. [Id. at 6.] Petitioner contends that his career offender enhancement, which was based on the residual clause of the Guidelines, violates the Due Process Clause. [Doc. 1-1.]

         Respondent asserts that the Petition should be dismissed because the savings clause of § 2255(e) is not available to Petitioner because Petitioner has not shown that a remedy under § 2255 is inadequate or ineffective to test the legality of his detention. [Doc. 26-1.] Alternatively, Respondent requests that this action be stayed until the matters of Beckles v. United States, No. 15-8544, ___ U.S. ___, 136 S.Ct. 2510 (June 27, 2016), argument conducted November 28, 2016, and United States v. Surratt, 797 F.3d 240, 269 (4th Cir. 2015), reh'g en banc granted (Dec. 2, 2015), are resolved. [Id.]

         APPLICABLE LAW

         Summary ...


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