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Ivory v. United States

United States District Court, M.D. Alabama, Northern Division

March 19, 2019

ENESTO LERNARD IVORY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. ORDEN UNITED STATES MAGISTRATE JUDGE

         Before the court is Enesto Lernard Ivory's pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. 1.

         I. BACKGROUND

         On November 4, 2015, Ivory pleaded guilty under a plea agreement to conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846 & 841(a)(1) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Following a sentencing hearing on February 16, 2016, the district court sentenced Ivory to 123 months in prison consisting of a 63-month term for the conspiracy count and a consecutive 60-month term for the § 924(c) count. Ivory did not appeal.

         On February 2, 2017, Ivory filed this § 2255 motion arguing that his § 924(c) conviction for possession of a firearm in furtherance of a drug trafficking crime is invalid under the Supreme Court's holding in Henderson v. United States, 135 S.Ct. 1780 (2015). See Docs. 1 & 2. For the reasons that follow, the Magistrate Judge recommends that Ivory's § 2255 motion be denied without an evidentiary hearing and this case dismissed with prejudice.

         II. DISCUSSION

         A. Procedural Default

         Ivory claims that his § 924(c) conviction is invalid. In Henderson, 135 S.Ct. at 1784, the Supreme Court explained that “actual possession exists when a person has direct control over a thing” and “[c]onstructive possession is established when a person, though lacking such physical control, still has the power and intent to exercise control over the object.” Ivory argues that Henderson constitutes a change in substantive law[1] that modifies the element of possession in federal statutes, including § 924(c), such that the government had to prove his specific intent to exercise control over the firearm made the basis of his conviction. Ivory's argument implies that he was not in actual possession of the firearm so his § 924(c) conviction depended on proof of constructive possession, and that the government failed to proffer facts showing he specifically intended to exercise control over the firearm.

         The government responds that Ivory procedurally defaulted his claim because he failed to raise it in the district court or on direct appeal. Doc. 4 at 5-7. Ordinarily, where a defendant does not advance a claim in the trial court or on appeal, the claim is procedurally barred in a § 2255 proceeding and will not be considered on collateral review. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011); Reece v. United States, 119 F.3d 1462, 1467 n.9 (11th Cir. 1997); Mills v. United States, 36 F.3d 1052, 1055-56 (11th Cir. 1994). Here, it is undisputed that Ivory did not assert his claim in the district court or on direct appeal. Therefore, the claim is procedurally defaulted unless an exception applies.

         B. Exceptions to Procedural Default

         A district court may excuse a procedural default only if one of the two exceptions to the procedural default rule applies. “Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (citations omitted). “Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. (citations and quotation marks omitted). In this context, “‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).

         1. Cause and Prejudice

         Ivory's pleadings are silent as to any cause excusing his failure to raise his Henderson claim in the district court or on direct appeal. Therefore, the cause-and-prejudice exception does not excuse Ivory's procedural default of his claim.

         2. ...


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