Cannady v. Fikes

• Decision Date: 10 March 2023
• Docket Number: Civil Action 2:22-cv-55
• Parties: RODNEY EARL CANNADY, Petitioner, v. WARDEN J. FIKES, Respondent.
• Court: U.S. District Court — Southern District of Georgia

1

RODNEY EARL CANNADY, Petitioner, v. WARDEN J. FIKES, Respondent.

Civil Action No. 2:22-cv-55

United States District Court, S.D. Georgia, Brunswick Division

March 10, 2023

ORDER AND REPORT AND RECOMMENDATION

BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

Petitioner Rodney Cannady (“Cannady”), who is currently housed at the Federal Correctional Institution in Jesup Georgia, submitted a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus. Doc. 1. For the reasons which follow, I RECOMMEND the Court DISMISS Cannady's § 2241 Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Cannady in forma pauperis status on appeal.^[1] I GRANT Cannady's Motion to Expedite, to the extent this Report is being issued. Doc. 2. However, I DENY Cannady's Motion to Supplement based on the following reasons. Id.

BACKGROUND

Cannady was convicted after pleading guilty to possession with the intent to distribute 50 grams or more of cocaine base (crack) and a quantity of oxycodone, in violation of 21 U.S.C. § 841(a)(1). J., United States v. Cannady, 5:08-cr-258 (E.D.N.C Mar. 25, 2009) (“Crim. Case”), ECF No. 25. Cannady was sentenced to 384 months in prison. Id.

Cannady filed a direct appeal with the Fourth Circuit Court of Appeals and asserted his guilty plea should be vacated because his change of plea hearing was conducted jointly with several co-defendants, his sentence is excessive, and police officers violated his Fourth Amendment rights. Id. at ECF No. 37. The Fourth Circuit rejected these arguments and affirmed Cannady's conviction and sentence. Id.

Cannady filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence in the Eastern District of North Carolina. He argued his trial counsel rendered ineffective assistance by not filing pre-trial motions to attack the illegal traffic stop and search of the car and because Cannady was not charged with a seatbelt violation. In addition, Cannady stated his counsel forced him to enter into a plea agreement, did not ask to be removed from representing Cannady when a conflict arose, and did not investigate the information regarding the prior conviction, resulting in a much harsher sentence, and he did not receive proper notice of the 21 U.S.C. § 851 enhancement the Government sought. Cannady also argued his appellate counsel was ineffective for failing to raise the first two issues on appeal. Id. at ECF No. 41. The district court granted the government's motion to dismiss and denied Cannady's motion. Id. at ECF No. 57. The Fourth Circuit dismissed Cannady's appeal for lack of prosecution. Id. at ECF No. 64.

Cannady filed an application to file a second or successive § 2255 motion with the district court, claiming he is not a career offender because the two predicate offenses used to assign the career offender designation to him, including his conspiracy conviction, are not predicate offenses. Id. at ECF No. 72. The district court directed Cannady's application be submitted to the Fourth Circuit for that court's consideration. Id. at ECF No. 74. The Fourth Circuit denied Cannady authorization to file a second or successive motion. Id. at ECF No. 94.

Cannady then filed a motion to vacate judgment under Federal Rule of Civil Procedure 60(b)(4) and claimed the warrant authorizing his arrest was not based on probable cause and his plea was not entered into knowingly and intelligently. Id. at ECF No. 101. Cannady submitted a letter to the trial judge based, in part, on the same grounds as his Rule 60(b) motion, and this letter was docketed as a motion to vacate. Id. at ECF No. 117. The trial judge dismissed Cannady's motions (and several others) as an unauthorized, successive § 2255 motion. Id. at ECF No. 120.

Cannady filed another § 2255 motion and again argued he is not a career offender under the Guidelines because his previous convictions are not serious drug offenses. Id. at ECF No. 123. Unsurprisingly, Cannady's motion was dismissed as successive. Id. at ECF No. 125. Cannady filed a motion for reconsideration, which the trial court denied. Id. at ECF Nos. 128, 133. Cannady filed several more motions, including motions for compassionate release, for time credits under the First Step Act of 2018, and for resentencing. Id. at ECF Nos. 136, 137, 139, 149, 154, 174, 192. These motions were denied at the trial court level and the appellate level. Id. at ECF Nos. 138, 142, 177, 187, 194, 199. The Fourth Circuit specifically noted Cannady's request for resentencing based on his claim he was actually innocent of the career offender enhancement was an unauthorized, successive § 2255 motion. Id. at ECF No. 199, pp. 2, 3.

In his § 2241 Petition, Cannady contends he was improperly designated as a career offender because the trial court used his 1997 conspiracy conviction as a predicate offense. Doc. 1 at 2. Cannady states this is not a controlled substance offense under § 4B1.1 of the United States Sentencing Guidelines and, without this enhancement, his sentencing range would have been 168 to 210 months' imprisonment. Id. at 7. Cannady seeks to be re-sentenced without this enhancement and to receive all benefit of retroactive amendments to the Sentencing Guidelines. Id. at 8.

DISCUSSION

I. Whether Cannady Can Proceed Under § 2241

Cannady's Petition should be dismissed because it is an attack on his federal sentence that can only be made in compliance with § 2255, and Cannady has not satisfied the requirements of § 2255. His Petition is barred and should be dismissed.

Section 2241 habeas corpus petitions “are generally reserved for challenges to the execution of a sentence or the nature of confinement, not the validity of the sentence itself or the fact of confinement.” Vieux v. Warden, 616 Fed.Appx. 891, 896 (11th Cir. 2015) (internal punctuation and citation omitted). Ordinarily, an action in which an individual seeks to collaterally attack “the validity of a federal sentence must be brought under § 2255,” in the district of conviction. 28 U.S.C. § 2255(a); Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir. 2013). To utilize § 2241 to attack the validity of a federal sentence or conviction, a petitioner must show the remedy afforded under § 2255 is “inadequate or ineffective.” Taylor v. Warden, FCI Marianna, 557 Fed.Appx. 911, 913 (11th Cir. 2014); Turner, 709 F.3d at 1333 (noting the petitioner bears the burden of establishing the remedy under § 2255 was inadequate or ineffective to test the legality of his detention). A motion to vacate covers only challenges to the validity of a sentence, but the saving clause and a petition for a writ of habeas corpus cover challenges to the execution of a sentence. Cf. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (“It is well-settled that a § 2255 motion to vacate is a separate and distinct remedy from habeas corpus proper . . . . A prisoner in custody pursuant to a federal court judgment may proceed under §2241 only when he raises claims outside the scope of § 2255(a), that is, claims concerning execution of his sentence.”) (internal citations omitted)); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) (“[The prisoner's] appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing.”).

Section 2255(e) provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The above-emphasized portion of § 2255(e) is referred to as the “saving clause.” “Section 2255(e) makes clear that a motion to vacate is the exclusive mechanism for a federal prisoner to seek collateral relief unless he can satisfy” the saving clause. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017).

To determine whether a prisoner satisfies the saving clause, a court need only analyze “whether the motion to vacate is an adequate procedure to test the prisoner's claim.” Id. at 1086. To answer this question, a court should “ask whether the prisoner would have been permitted to bring that claim in a motion to vacate. In other words, a prisoner has a meaningful opportunity to test his claim whenever section 2255 can provide him a remedy.” Id. at 1086-87. In short, when reviewing a § 2241 petition, courts should look to whether the petitioner's claim is of a kind that is “cognizable” under § 2255. If so, the petitioner cannot meet the “saving clause” and cannot proceed under § 2241. To be sure, “[t]he remedy [afforded] by [a § 2255] motion is not ineffective unless the procedure it provides is incapable of adjudicating the claim.” Id. At 1088. Whether the petitioner is entitled to relief under § 2255 is not relevant to the McCarthan test. Rather, it is the “remedy” that must be “inadequate or ineffective” to trigger the saving clause, meaning “the available process-not substantive relief.” Id. at 1086.

The saving clause can be used in cases presenting “limited circumstances,” but Cannady does not present any of those circumstances through his instant Petition.^[2] Cannady is clearly challenging his sentence, which he freely admits. Doc. 1. This is the type of claim and requested relief § 2255 encompasses. It is clear Cannady is not attacking the manner in which his sentence is being executed but his sentence...