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Taylor v. Mcconnell

United States District Court, W.D. Louisiana, Alexandria Division

August 14, 2018

JOHN ANTHONY TAYLOR, III, Petitioner
v.
CHRIS MCCONNELL, Respondent

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         Because Taylor cannot meet the requirements of the savings clause of 28 U.S.C. § 2255, his petition should be dismissed for lack of jurisdiction.

         I. Background

         Taylor 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 In re: John Anthony Taylor, No. 16-20588 (5th Cir. 11/22/16) (unpublished).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).

         Taylor filed motions to vacate under 28 U.S.C. § 2255, which were denied. (4:99-cr-553, S.D. Tex., Docs. 111, 115, 126, 130).

         Taylor 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 In re: John Anthony Taylor, No. 16-20588 (5th Cir. 11/22/16) (unpublished).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. Id.

         In his § 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).

         II. Law and Analysis

         A. Taylor cannot meet the requirements of the savings clause.

         Taylor 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. 1979).

         To 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).

         In 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.

         Taylor 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 ...


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