Opinion
CASE NO. 4:10-cv-00447-MP-WCS.
February 23, 2011
ORDER
This matter is before the Court on Doc. 4, Report and Recommendations of the Magistrate Judge, which recommends that the § 2241 petition for writ of habeas corpus, Doc. 1, be summarily dismissed with prejudice. Petitioner timely objected to the Magistrate Judge's Report and Recommendation, Doc. 5. This Court reviews objected-to material de novo.
Petitioner seeks § 2241 relief from her convictions for conspiracy to possess with intent to distribute controlled substances, possession with intent to distribute cocaine, crack cocaine, and marijuana, and use of a communication facility to commit, cause, or facilitate commission of a drug felony, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A), 841(a)(1), and 843(b), respectively. Petitioner claims actual innocence pursuant to, and wants to take advantage of, the change in law occasioned by Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), and Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010) vacated, 625 F.3d 716 (11th Cir. 2010). Doc. 1-1 at 2-3. In Begay, the Court limited the meaning of "violent felony" under the Armed Career Criminal Act (ACCA). 553 U.S. at 142-43, 128 S. Ct. 1584-85. In Archer, the Eleventh Circuit applied Begay to find that a prior conviction for carrying a concealed weapon was not a qualifying "crime of violence" for purposes of sentencing as a "career offender" under U.S.S.G. § 4B1.1. In Gilbert, it was conceded that Begay and Archer applied retroactively, and the court found the defendant innocent of the "offense" of being a career offender. However, in the instant case, there is no indication that Petitioner was deemed to have committed a "violent felony" or "crime of violence." As such, cases interpreting those phrases do not apply.
Petitioner also claims she was sentenced to a mandatory term of life imprisonment pursuant to 18 U.S.C. § 3559(c). Doc. 1-1 at 3. She asserts that the four offenses used to enhance her sentence did not qualify as "serious drug offenses" under § 3559(c). Id. at 3-4. However, there is no indication the Petitioner was convicted in federal court of "a serious violent felony" subject to enhancement under § 3559(c). Petitioner's sentence was enhanced for having at least two prior convictions for a felony drug offense. See § 841(b)(1)(A). Under § 841(b)(1)(A), for offenses involving certain quantities of controlled substances (including cocaine, cocaine base, or marijuana), the sentence is ten years to life; if the offense is committed "after a prior conviction for a felony drug offense has become final," the sentence is twenty years to life; if committed "after two or more prior convictions for a felony drug offense have become final," then the sentence is a mandatory term of life. This was the basis for Petitioner's life sentence. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge, Doc. 4, is ADOPTED and incorporated herein.
2. Petition for writ of habeas corpus, Doc. 1, is DISMISSED with prejudice.DONE AND ORDERED this 23rd day of February, 2011