United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE
January 26, 2017, the pro se Petitioner, Anthony
Garrett (“Garrett”), then an inmate incarcerated
at FCI Gilmer in Glenville, West Virginia, filed a
petition for writ of habeas corpus under 28 U.S.C. §
2241, challenging the predicate convictions underlying his
enhanced sentence. ECF No. 1. Along with his petition, he
filed a motion to proceed in forma pauperis
(“IFP”) and a copy of his Prisoner Trust Account
Report with Ledger Sheets. ECF Nos. 2 & 3. By Order
entered February 1, 2017, Petitioner's IFP motion was
granted and he was directed to pay the five dollar filing
fee. ECF No. 5. Petitioner paid the requisite fee on February
24, 2017. ECF No. 7.
7, 2017, Magistrate Judge James E. Seibert conducted a
preliminary review of the file, determined that summary
dismissal was not appropriate at that time, and directed the
Respondent to answer the petition. ECF No. 8. On June 28,
2017, the Respondent moved for an extension of time, which
was granted by Order entered July 5, 2017. ECF Nos. 10 &
11. On July 11, 2017, the Respondent filed a Motion to
Dismiss and Response to Order to Show Cause with a memorandum
in support. ECF Nos. 13 & 14. Because Garrett was
proceeding pro se, on July 12, 2017, a
Roseboro Notice was issued. ECF No. 15. Petitioner
moved for an extension of time on August 18, 2017, which was
granted by Order entered August 22, 2017. ECF Nos. 17 &
18. Despite the extension of time, Petitioner did not file a
Order entered on September 15, 2017, this case was reassigned
from Magistrate Judge James E. Seibert to the undersigned.
matter is now pending before the undersigned for a Report and
Recommendation pursuant to LR PL P 2.
Factual and Procedural History
Conviction and Sentence
April 14, 1993, in the United States District Court for the
Southern District of Illinois, a Criminal Complaint was filed
against Petitioner and two co-defendants in Case No.
4:93cr40032-3. ECF No. 1. On May 12, 1993, the grand jury
returned a two-count indictment, charging Petitioner and his
two co-defendants with conspiracy to distribute and
possession with intent to distribute “crack
cocaine” in violation of 21 U.S.C. § 846(a)(1) and
(b)(A)(iii), and of using and carrying a firearm during the
commission of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1)-(2).
November 17, 1993, after a 3-day jury trial, Petitioner was
convicted of both charges. See ECF No. 65; see
also United States v. Garrett, No. 93cr40032, 2015 WL
764024 (S.D. Ill. Feb. 23, 2015).
February 14, 1994 sentencing hearing, after finding that
Garrett was a career offender under U.S.S.G. § 4B1.1,
based on his prior violent felony convictions, the district
court sentenced him to consecutive terms of 360 months on the
conspiracy charge and 120 months on the firearms charge, for
a total of 480 months. ECF No. 87.
appeal, Petitioner raised three issues: 1) whether his
pretrial detention violated the Speedy Trial Act; 2) whether
the district court erroneously applied the career offender
guideline at sentencing; and 3) whether the evidence was
sufficient to prove drug amount. See United States v.
Garrett, 45 F.3d 1135, 1136. (7th Cir. 1995). On January
25, 1995, the Seventh Circuit affirmed Petitioner's
conviction and sentence. Id. at 1141. Petitioner
sought a writ of certiorari to the Supreme Court of
the United States; it was denied on May 22, 1995. See
Garrett v. United States, 514 U.S. 1134 (1995).
Motions to Vacate
April 14, 1997, Petitioner filed his first § 2255 motion
to vacate, arguing that the United States Sentencing
Commission exceeded its authority by making USSG 4B1.1
applicable to conspiracies such as his own, and that his
conviction as to Count Two of the indictment (use of firearms
during commission of a felony) should be vacated in light of
Bailey v. United States.See S.D. Ill. Case
No. 4:97cv4016, ECF No. 1. By Order entered September 9,
1998, the district court vacated Petitioner's sentence
for Count 2 (use of firearms during commission of a felony);
denied the § 2255 motion to the extent it sought relief
from Petitioner's drug conviction; and dismissed with
prejudice his claim that the United States Sentencing
Commission exceeded its authority. See S.D. Ill.
Case No. 4:97cv4016, ECF No. 8.
filed his second § 2255 Motion on January 27, 2005,
seeking a sentence reduction on various grounds. See
S.D. Ill. Case No. 4:05cv4009, ECF No. 1. By Order entered
February 18, 2005, it was dismissed for lack of jurisdiction
as an unauthorized second or successive petition.
See S.D. Ill. Case No. 4:05cv4009, ECF No. 2.
Petitioner appealed. On April 14, 2005, the appeal was
dismissed for failure to pay the docketing fee. See
S.D. Ill. Case No. 4:05cv4009, ECF No. 7.
November 17, 2016, pursuant to an Order by the sentencing
court [see S.D. Ill. Case No. 4:97cv4106, ECF No. 10
at 3], Petitioner filed a 28 U.S.C. § 2244 application
in the Seventh Circuit Court of appeals to file a second or
successive § 2255 motion, pursuant to Johnson v.
United States,  challenging his classification as a career
offender because of his prior convictions of aggravated
battery. On December 5, 2016, the Seventh Circuit denied
Petitioner's application, holding that the
Shepard documents submitted with the government's
response showed that in both cases, Petitioner was charged
and pled guilty to aggravated battery by
knowingly/intentionally causing bodily harm, which
necessarily requires the use of force. See Garrett v.
United States, (7th Cir. ECF No. 5)(Case No. 16-3930).
Accordingly, the Seventh Circuit held that the prior
convictions for aggravated battery qualified as crimes of
violence under the elements clause, and dismissed the
application. Id. at 2.
Other Post-Conviction ...