United States District Court, N.D. Alabama, Eastern Division
CALVIN F. TANNEHILL, Petitioner,
B. H. ROMERO, Warden, Respondent.
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 2241, petitioner Calvin F. Tannehill asks
the Court to issue a writ of habeas corpus concerning his
federal sentence. (Doc. 1). In his initial petition, Mr.
Tannehill challenges his 2008 sentence under Count One for
his violation of 18 U.S.C. § 922(g) because the district
court enhanced his sentence pursuant to the Armed Career
Criminal Act, 18 U.S.C. § 924(e). (Doc. 1). In a
proposed amendment to his petition, relying on Rehaif v.
United States, 139 S.Ct. 2191 (2019), Mr. Tannehill also
challenges his conviction under 18 U.S.C. § 922(g).
(Docs. 11, 13).
November 8, 2019, the magistrate judge to whom this case was
referred entered a report in which he recommended that the
court dismiss Mr. Tannehill's §2241 petition because
the court lacks jurisdiction over the petition. (Doc. 12).
The magistrate judge also found that Mr. Tannehill's
proposed amendment to his petition was futile, so the
magistrate judge denied Mr. Tannehill's motion to amend
his petition. (Doc. 12, p. 6 n. 3). The magistrate judge
advised Mr. Tannehill of his right to object to the report.
(Doc. 12, p. 7). In response to the report, Mr. Tannehill
re-filed his motion to amend his petition and asked the Court
to address the merits of his motion. (Doc. 13; see
Doc. 13, p. 13).
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984) (“The failure to object to the magistrate's
findings of fact prohibits an attack on appeal of the factual
findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation
omitted); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006).
Tannehill asserts that Rehaif v. United States
constitutes an intervening change in the law that warrants
relief from his conviction as a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). (Doc. 13, p.
1). In Rehaif, the United States Supreme Court held
that, in prosecutions pursuant to 18 U.S.C. §§
922(g) and 924(a)(2), “the Government must prove that a
defendant knows of his status as a person barred from
possessing a firearm.” 139 S.Ct. 2191, 2195 (2019). The
Eleventh Circuit Court of Appeals has held that
Rehaif did not announce a new rule of law, and even
if it did, the new rule should apply only prospectively to
future cases. In re Wright, 942 F.3d 1063 (11th Cir.
2019). In Wright, the Court of Appeals stated:
In In re Palacios, we determined that the Supreme
Court's decision in Rehaif v. United States, __
U.S. __, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019), did not
announce a new rule of constitutional law but rather
clarified the requirements for prosecuting an individual
under 18 U.S.C. §§ 922(g) and 924(a)(2). 931 F.3d
1314, 1315 (11th Cir. 2019) (denying an application for leave
to file a successive § 2255 motion that was premised on
Rehaif). Further, we determined that, even if
Rehaif had announced a new rule of constitutional
law, the Supreme Court has not made that decision retroactive
to cases on collateral review. Id.
942 F.3d at 1064-65.
Rehaif could somehow apply to Mr. Tannehill's
2008 sentence, as the magistrate judge explained, Mr.
Tannehill must raise his argument in a § 2255 motion,
not in a § 2241 habeas petition because Mr. Tannehill
challenges the fact of his conviction and sentence, and not
the execution of the sentence. McCarthan v. Director of
Goodwill Industries-Suncoast Inc., 851 F.3d 1076, 1009
(11th Cir. 2017). Because § 2255 is not
“inadequate or ineffective to test the legality of his
detention, ” 28 U.S.C. § 2255(e), this Court lacks
jurisdiction to consider Mr. Tannehill's § 2241
petition. See, e.g., Nipper v. Warden, FCC
Coleman-Medium, 688 Fed.Appx. 851, 852 (11th Cir. 2017)
(“The savings clause does not apply to claims based on
new rules of constitutional law-such claims must be brought
in a second or successive § 2255 motion under §
2255(h)(2).”) (citing Williams v. Warden, Federal
Bureau of Prisons, 713 F.3d 1332, 1342-43 (11th Cir.
reviewed and considered the materials in the court file, the
Court adopts the magistrate judge's report and accepts
his recommendation. Accordingly, the Court dismisses this