United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Â§
2241 was submitted to the court by a federal prison inmate
appearing pro se. Pursuant to 28 U.S.C. Â§ 636(b)(1)(B), and
Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate
judge is authorized to review all pretrial matters in such
pro se cases and to submit findings and recommendations to
the district court. See 28 U.S.C. Â§Â§ 1915(e), 1915A
(as soon as possible after docketing, district courts should
review prisoner cases to determine whether they are subject
to summary dismissal).
Factual and Procedural Background
Willie Askew, III ("Petitioner") is currently
incarcerated at FCI-Williamsburg in Salters, South Carolina,
serving a sentence on a conviction for conspiracy to possess
cocaine base with the intent to distribute, 21 U.S.C. Â§Â§ 846,
841(a)(1) entered by the United States District Court for the
Northern District of Alabama ("the sentencing
court") on April 2, 2009. United States v.
Askew, No. 1:08-cr-00204-LSC-TMP (N.D. Ala.). According
to the Petition under review, Petitioner's conviction and
sentence were affirmed on direct appeal by the Eleventh
Circuit Court of Appeals on January 11, 2010.
Petitioner's initial motion to vacate pursuant to 28
U.S.C. Â§ 2255 was denied and dismissed by the sentencing
court on March 25, 2014. Askew v. United States, No.
1:11-cv-08001-LSC-TMP (N.D. Ala.) (Mem. Op., ECF No. 11).
Petitioner's motion for a certificate of appealability
was denied by the Eleventh Circuit Court of Appeals on
October 22, 2014, and the United States Supreme Court denied
Petitioner's petition for writ of certiorari on May 4,
2015. Id. at ECF Nos. 23, 25.
Â§ 2241 Petition now under review, Petitioner asks this court
to "release [him] from illegal incarceration, in that
his actually and factually innocent of all charges...."
Pet. 9, ECF No. 1. Petitioner raises several Grounds for
relief, primarily alleging, as he had done in his initial Â§
2255 motion before the sentencing court, that the evidence
presented at his trial was inadequate to convict him and that
his trial counsel was ineffective in several ways.
Id. at 7-8; ECF No. 10 (amendment to Petition adding
additional claims of ineffective assistance of trial
counsel); ECF No. 16 (additional attachments to Petition
including additional allegations of ineffective assistance of
trial counsel). Petitioner states that the Â§ 2255 remedy is
inadequate and ineffective to test the legality of his
detention because "the recent Supreme Law had not been
ineffect [sic] at the time petitioner filed his original Â§
2255. The Supere [sic] Court has stated that a Â§ 2244 [sic]
is now the proper vehicle where the Supreme Court has ruled
on a new law or rule that is retroactive, when it was
unavailable at the time of filing his original Â§ 2255.
Therefore, this Title 28 USC Â§ 2244 [sic] is properly
filed." ECF No. 1 at 5. Petitioner attaches many
documents, pleadings, and pages of trial transcripts from his
proceedings in the sentencing court as exhibits to his
Petition, ECF Nos. 1-1, 9, 10, 16; however, he does not
provide a citation to the "Supreme Law" that he
alleges is retroactive and authorizes the Â§ 2241 Petition now
Standard of Review
established local procedure in this judicial district, a
careful review was made of the pro se Petition filed in this
case. The review was conducted pursuant to the procedural
provisions of 28 U.S.C. Â§Â§ 1915, 1915A, and the
Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA") and in light of the following precedents:
Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke
v. Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v.
Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v.
Alizaduh, 595 F.2d 948 (4th Cir. 1979).
court is required to construe pro se petitions liberally.
Such pro se petitions are held to a less stringent standard
than those drafted by attorneys, Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district
court is charged with liberally construing a petition filed
by a pro se litigant to allow the development of a
potentially meritorious case. Erickson v. Pardus,
551 U.S. 89, 94 (2007). When a federal court is evaluating a
pro se petition the petitioner's allegations are assumed
to be true. De'Lonta v. Angelone, 330 F.3d 630,
630 n.1 (4th Cir. 2003). The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleading to allege facts that set forth a
claim currently cognizable in a federal district court.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990).
this court is charged with screening Petitioner's filings
to determine if "it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court." Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts; see Rule 1(b) of Rules Governing Section
2254 Cases in the United States District Courts (a district
court may apply these rules to a habeas corpus petition not
filed pursuant to Â§ 2254). Following the required initial
review, it is recommended that the Petition submitted in this
case be summarily dismissed.
appears that Petitioner is making essentially the same
arguments and claims about the underlying validity of his
conviction in this court that he unsuccessfully made to the
sentencing court in connection with his initial Â§ 2255
motion. His allegations of insufficient evidence of guilt to
support his conviction and numerous instances of ineffective
assistance of trial counsel all go to the underlying validity
of his conviction rather than to the manner of execution of
the sentence, which is the most commonly accepted subject
matter for petitions filed pursuant to Â§ 2241. See
Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.
1999) (collecting cases from other circuits). In this Circuit
it is settled that "[a]s a threshold matter...
defendants convicted in federal court are obliged to seek
habeas relief from their convictions and sentences through Â§
2255." Rice v. Rivera, 617 F.3d 802, 807 (4th
Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194
(4th Cir. 1997) ( en banc )). The Fourth Circuit
Court of Appeals has held that challenges to the underlying
validity of a federal criminal conviction are not properly
considered under Â§ 2241 unless Petitioner can come within Â§
2255's so-called "savings clause" by showing
that this is an exceptional case where Â§ 2255 is neither an
adequate nor effective remedy for those issues. See
In re Jones, 226 F.3d 328, 333 (4th Cir. 2000);
In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1977);
Farrow v. Revell, No. 13-6804, 2013 WL 5546155, at
*1 (4th Cir. Oct. 9, 2013). In other words, Petitioner's
Â§ 2241 action is barred unless he can demonstrate that the
relief available to him under Â§ 2255 is inadequate or
ineffective. The Â§ 2255 "savings clause" states:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
28 U.S.C. Â§ 2255(e). In considering the savings clause in the
context of a Â§ 2241 petition, the law in this Circuit is
settled that the possibility that a second Â§ 2255 motion
filed by Petitioner in the sentencing court might be found
untimely or successive does not render the Â§ 2255 remedy
inadequate or ineffective. See In Re Vial,
115 F.3d at 1194 n.5; see also Jiminian v.
Nash, 245 F.3d 144, 147-48 (2d Cir. 2001) (collecting
cases). To trigger the "savings clause" of Â§
2255(e) and proceed under Â§ 2241, Petitioner would have to
show that something more and different should be considered
by the court than that authorized by Â§ 2255, such as a
retroactive change in the law that was applied to his
conviction or sentence by the sentencing court as
contemplated in In re Jones, 226 F.3d 328 (4th Cir.
2000). The Jones court held a petitioner must show
that "(1) at the time of the conviction, settled law of
this circuit or the Supreme Court established the legality of
the conviction; (2) subsequent to the prisoner's direct
appeal and first Â§ 2255 motion, the substantive law changed
such that the conduct of which the prisoner was convicted is
deemed not to be criminal; and (3) the prisoner cannot
satisfy the gate-keeping provisions of Â§ 2255 because the new
rule is not one of constitutional law." Jones,
226 F.3d at 333-34.
although Petitioner broadly asserts that his claims before
this court satisfy the savings clause because of some
"Supreme Law" that is supposedly retroactive, he
does not provide this court with a citation to that law, nor
does he appear to base any of the Grounds raised in the
Petition on any specific legal authority to that effect.
Although he alleges that he is actually innocent of the crime
of which he was convicted, Petitioner does not allege, as
required to proceed under the holding in Jones, that
the conduct of which he was convicted-possessing crack
cocaine-is no longer criminal because of whatever
"Supreme Law" he references. The court cannot
accept his conclusory and unsupported allegations without
legal support, nor can it proceed under Â§ 2241 to overrule
the Northern District of Alabama, which has already
considered and rejected Petitioner's claims of
insufficient evidence to convict as well as claims of