United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
se Petitioner, Tony Andowane Grier, brings this application
for writ of habeas corpus (Petition) pursuant to 28 U.S.C.
§ 2241. Under established local procedure in this
judicial district, a careful review has been made of the pro
se petition filed in this case pursuant to the procedural
provisions of the Rules Governing Section 2254 Proceedings in
the United States District Court, 28 U.S.C. § 2254; the
Anti-Terrorism and Effective Death Penalty Act of 1996; and
in light of the following precedents; Denton v.
Hernandez. 504 U.S. 25 (1992); Neitzke v.
Williams. 490U.S. 319.324-25 (1989); Haines v.
Kemer., 404 U.S. 519(1972); Nasim v. Warden.Md.House
of Corr.. 64 F.3d 951 (4th Cir.1995); and Todd v.
Baskerville. 712 F.2d 70 (4th Cir.1983).
se petitions are held to a less stringent standard than those
drafted by attorneys, and a court is charged with liberally
construing a petition filed by a pro se litigant to allow the
development of a potentially meritorious case. See Hughes
v. Rowe. 449 U.S. 5, 9 (1980); Cruz v. Beta,
405 U.S. 319 (1972); Fine v. City of New York. 529
F.2d 70, 74 (2d Cir. 1975). However, even when considered
under this less stringent standard, for the reasons set forth
here in below the petition submitted in the instant case is
subject to summary dismissal. The requirement of liberal
construction does not mean that this Court can ignore a clear
failure in the pleading to allege facts which set forth a
claim currently cognizable in a federal district court. See
Weller v. Dep't of Soc. Serve.. 901 F.2d 387
(4th Cir. 1990).
an inmate at FCI-Edgefield, asserts that he was
"sentence[d] under the Residual Clause that the Supreme
Court ruled vague and unconstitutional." Petition, ECF
No. 1 at 6. He states that he was charged in the Western
District of North Carolina with possession with intent to
distribute cocaine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C) and possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g); pled
guilty "to Count 1, that Count 2 would be
dismissed"; and was sentenced (on November 20, 2007) to
188 months imprisonment. Id. at 1 -2. On December
15, 2008, the Fourth Circuit affirmed Petitioner's
sentence. United States v. Grier. 305 F.App'x 78
(4th Cir. 2008). Petitioner checked "No" to the
question of whether he had previously filed any petitions,
applications or motions with respect to his judgment (other
than his direct appeal). ECF No. 1 at 3. However, on January
20, 2016 (after the filing of this Petition), the Honorable
Robert J. Conrad, Jr., United States District Judge for the
Western District of North Carolina, granted the
government's motion for a reduction of Petitioner's
sentence (for substantial assistance) pursuant to Fed, R.
Crim, P. 35 and reduced Petitioner's sentence to 152
argues that in light of Johnson v. United States,
135 S.Ct. 2551 (2015)[declaring the residual clause in the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
unconstitutionally vague], that prior convictions used to
enhance a defendant's sentence under the ACCA or as a
Career Offender under the United States Sentencing
Guidelines (USSG) are unconstitutional. The Supreme Court
recently held that the Johnson decision announced a
substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, 136 S.Ct,
1257 (2016); see ajso In Re Robinson. ___ F.3d ___,
No. 16-11304, 2016 WL 1583616, at *l (11th Cir. Apr. 19,
2016). He also asserts that this Fifth and Sixth Amendment
rights were violated. ECF No, 1 at 6; Memorandum in Support
of Petition, ECF No. 1-1 at 3-11.
petition is subject to dismissal because it is "well
established that defendants convicted in federal court are
obliged to seek habeas relief from their convictions and
sentences through [28 U.S.C] § 2255, " not through
a petition filed pursuant to § 2241. Rice v.
Rivera. 617 F.3d 802, 807 (4th Cir. 2010) (citing In
re Vial. 115 F.3d 1192, 1194 (4th Cir. 1997)).
Petitioner cannot challenge his federal conviction and
sentence under § 2241 unless he can satisfy the §
2255 savings clause, which provides:
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. § 2255(e); see also Reyes-Requena v.
United States. 243 F.3d 893, 901 (5th Cir. 2001);
Ennis v. Olsen. No. 00-7361, 2000 WL 1868982, at *1
(4th Cir. Dec. 22, 2000).
Fourth Circuit has announced a three-part test to determine
whether a petition challenging the lawfulness of a conviction
or sentence can be brought under § 2241:
Section 2255 is inadequate and ineffective to test the
legality of a conviction when: (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 § 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 gatekeeping
provisions of § 2255 because the new rule is not one of
In re Jones. 226 F.3d 328, 333-34 (4th Cir. 2000).
This test was formulated expressly to provide a remedy for
the "fundamental defect presented by a situation in
which an individual is incarcerated for conduct that is not
criminal but, through no fault of his own, he has no source
of redress." Id. at 333 n. 3. In this case,
however, there is no plausible allegation that the savings
clause permits Petitioner to bring his claims under §
it appears that Petitioner has not even filed a § 2255
action with the sentencing court to permit it to review his
claims for relief. Courts require a prisoner in federal
custody to first proceed with a § 2255 motion before
attempting to satisfy the "savings clause." See
Hernandez v. Drew. 371 F.App'x 991, 993 (11th Cir.
Apr. 7, 2010)[noting that a prisoner may not circumvent the
requirements for filing a § 2255 motion merely by filing
a § 2241 petition.]; Dinkins v. Thomas, No.
8:15-49Q-RMG. 2015 WL 1877434. at *4 (D.S.C. April 23. 2015);
Hackett v. Atkinson. No. 9:13-1274-JFA-BM, 2013 WL
3972393, at *3 (D.S.C. July 31, 2013). Further, Petitioner
cannot meet the second prong of In re Jones (that
subsequent to his appeal and first § 2255 motion the
substantive law changed such that the conduct of which he was
convicted is deemed not to be criminal) because he has not
alleged (or shown) that he has even filed a first § 2255
motion. Accordingly, Petitioner cannot demonstrate that
relief under § 2255 is "inadequate or
rather than dismiss this case, the undersigned finds it in
the interest of justice to recharacterize this § 2241
habeas petition as a motion to vacate, set aside, or correct
Petitioner's sentence pursuant to 28 U.S.C. § 2255.
See Castro v. United States, 540 U.S. 375, 381
(2003) ["Federal courts sometimes will ignore the legal
label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a
different legal category .... to avoid an unnecessary
dismissal...."]. Because the AEDPA's one-year
statute of limitations in 28 U.S.C. §
2255(f) may be an issue in this case, it is
appropriate to recharacterize the Petition rather than
dismiss it without prejudice because of the proximity of the
running of the one-year time clock.To the extent that
Johnson applies to the Petitioner,  it appears that
the one-year period statute of limitations began on June 26,
2015, when the Supreme Court decided Johnson.