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