Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garrett v. Saad

United States District Court, N.D. West Virginia

January 16, 2018

ANTHONY GARRETT, Petitioner,
v.
J. SAAD, Warden, Respondent.

          KEELEY JUDGE

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE

         I. Background

         On January 26, 2017, the pro se Petitioner, Anthony Garrett (“Garrett”), then an inmate incarcerated at FCI Gilmer[1] 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.

         On June 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 response.

         By Order entered on September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to the undersigned.

         This matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2.

         II. Factual and Procedural History [2]

         A. Conviction and Sentence

         On 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).

         On 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).

         At his 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.

         B. Appeal

         On 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).

         C. Motions to Vacate

         On 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.[3]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.

         Petitioner 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.

         On 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, [4] 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[5] 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.

         D. Other Post-Conviction ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.