United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2241) filed by pro se Petitioner John Anthony Taylor,
III (“Taylor”) (#26788-034). Taylor is an inmate
in the custody of the Federal Bureau of Prisons
(“BOP”), incarcerated at the Federal Correctional
Institution in Pollock, Louisiana. Taylor challenges the
legality of his sentence.
Taylor cannot meet the requirements of the savings clause of
28 U.S.C. § 2255, his petition should be dismissed for
lack of jurisdiction.
was convicted of one count of armed bank robbery in violation
of 18 U.S.C. § 2113(d), two counts of bank robbery in
violation of § 2113(a), two counts of using and carrying
a firearm during a crime of violence in violation of 18
U.S.C. § 924(c)(1)(C)(i), and one count of using,
carrying, and brandishing a firearm during a crime of
violence in violation of § 924(c)(1)(A)(ii). In re:
John Anthony Taylor, No. 16-20588 (5th Cir. 11/22/16)
(unpublished). Taylor's conviction was affirmed on
appeal. United States v. Taylor, 248 F.3d 1139 (5th
Cir. 2001), cert. denied, 532 U.S. 913 (2001).
filed motions to vacate under 28 U.S.C. § 2255, which
were denied. (4:99-cr-553, S.D. Tex., Docs. 111, 115, 126,
sought authorization from the United States Court of Appeals
for the Fifth Circuit to file a successive motion under
§ 2255. Taylor argued that “his convictions and
sentences under § 924(c) were unconstitutional in light
of Johnson v. United States, 135 S.Ct. 2551 (2015),
because § 924(c) defines crime of violence in terms
similar to the residual clause of § 924(e) that was
found unconstitutionally vague in Johnson.”
In re: John Anthony Taylor, No. 16-20588 (5th Cir.
11/22/16) (unpublished). Taylor also sought to challenge the
consecutive nature of his sentences in light of United
States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014).
Id. The Fifth Circuit denied authorization.
§ 2241 motion before this Court, Taylor claims that he
is entitled to relief under Sessions v. Dimaya, 138
S.Ct. 1204 (2018), which Taylor claims expanded the holding
of Johnson by finding that 18 U.S.C. § 16(b),
as incorporated in the Immigration and Nationality Act, is
unconstitutionally vague. Taylor concludes that, because
§ 924(c)(3)(B) is “materially identical” to
the crime of violence definition under § 16(b), then
§ 924(c)(3)(B) is also unconstitutional. (Doc. 1, p. 7).
Law and Analysis
Taylor cannot meet the requirements of the savings
seeks to proceed under the savings clause of § 2255(e),
which provides a limited exception to the rule that a §
2241 petition may not be used to challenge the validity of a
federal sentence and conviction. See Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). The savings clause allows
a prisoner to rely on § 2241 if the remedy available
under § 2255 would be “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
§ 2255(e). The burden of affirmatively proving that the
§ 2255 remedy is inadequate rests with the petitioner.
See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
state a claim under the savings clause, a petitioner must
show that the claim is based on a retroactively applicable
Supreme Court decision that establishes the petitioner may
have been convicted of a nonexistent offense, and the claim
was foreclosed by circuit law at the time it should have been
raised in the petitioner's trial, appeal, or first §
2255 motion. Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001).
Johnson, the Supreme Court invalidated the residual
clause of the Armed Career Criminal Act of 1984, 18 U.S.C.
§ 924(e)(2)(B)(ii), which defined a “violent
felony” as one involving “conduct that presents a
serious potential risk of physical injury to another.”
Johnson, 135 S.Ct. at 2563.
claims that Johnson was expanded by Dimaya.
In Dimaya, the Supreme Court held that the
definition of “crime of violence” in 18 U.S.C.
§ 16(b), as incorporated in the Immigration and
Nationality Act, is unconstitutionally vague.
Dimaya, 138 S.Ct. at 1210. Taylor concludes that,
because § 924(c)(3)(B) is “materially
identical” to the crime of ...