United States District Court, D. South Carolina, Florence Division
OPINION & ORDER
Timothy M. Cain United States District Judge.
Brian Rasheed Debnam, an inmate proceeding pro se, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Petitioner was sentenced in the District Court
of North Carolina and is presently confined at the Federal
Correctional Institution in Williamsburg, South Carolina.
Petitioner alleges that he has was improperly sentenced as an
armed career criminal, and cites to Johnson v. United
States, 560 U.S. 2551 (2015).
accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2), D.S.C., all pre-trial proceedings were referred
to a magistrate judge. The magistrate judge filed a Report and
Recommendation (“Report”) recommending that this
case be dismissed without prejudice. (ECF No. 12). As set out
in the Report, on January 8, 2007, Petitioner pled guilty to
one count of being a felon in possession of a firearm, and
was sentenced as an armed career criminal under 18 U.S.C.
§ 924(e) and U.S.S.G. § 4B1.4., to one hundred
ninety-eight months (189) imprisonment. (Report at 1-2).
Petitioner filed a direct appeal which the Fourth Circuit
Court of Appeals dismissed as untimely. (Report at 2). In
December 2013, Petitioner filed a habeas petition pursuant to
28 U.S.C. § 2255, which was dismissed by the district
court. Id. Petitioner’s appeal was dismissed.
Petitioner then filed this petition pursuant to § 2241.
is well established that defendants convicted in federal
court are obliged to seek habeas relief from their
convictions and sentences through § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)
(citing In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997)). A 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).
2255 relief is inadequate or ineffective when
(1) at the time of 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 constitutional law.
In re Jones, 226 F.3d 328, 329 (4th Cir. 2000). In
Surratt v. United States, 797 F.3d 240 (4th Cir.
2015), reh'g en banc granted and opinion vacated (Dec. 2,
2015), a Fourth Circuit panel held that Jones
requires “actual innocence of a criminal act” for
relief under § 2241. Id. at 247. Thus, the
panel held that substantive law changes regarding elements of
sentence enhancements, as opposed to elements of the criminal
offense, cannot be the basis of a § 2241 petition.
Id. at 247-48.
on Surratt, in his Report, the magistrate judge
found the § 2255 savings clause inapplicable here. The
magistrate judge recommended that this § 2241 petition
be dismissed without prejudice Petitioner timely filed
objections to the Report. (ECF No. 16). On December 7, 2015,
Petitioner then filed a motion to stay this action pending
the Fourth Circuit Court of Appeal’ decision following
an en banc hearing in Surratt. (ECF No. 21). The
court granted the motion on January 20, 2016. (ECF No. 24).
then, however, the United States Supreme Court has ruled that
the Johnson decision announced a new rule of
constitutional law and is retroactive. Welch v. United
States, 136 S.Ct. 1257 (2016). Thus, Petitioner can now
seek relief for his Johnson claims pursuant to
§ 2255, after he obtains authorization from the Fourth
Circuit Court of Appeals. 28 U.S.C. §
2244(b)(2). Thus, Petitioner could not satisfy the
§ 2255 savings clause and any decision in
Surratt will not alter the outcome as to
Petitioner’s Johnson claim as relief is now
available to the Petitioner under § 2255(h)(2). Because
Petitioner can obtain the relief he seeks using a § 2255
motion if he is entitled to it, the court lacks jurisdiction
to consider the § 2241 motion. See 28 U.S.C. §
2255(e); In re Jones, 226 F.3d 328, 333-34 (4th Cir.
2000). And in fact, the court notes that it appears that,
after obtaining authorization from the Fourth Circuit Court
of Appeals, Petitioner filed a § 2255 motion in the
sentencing court on June 2, 2016. Debnam v. USA, C/A
No. 5:16-cv-310 (E.D. N.C. 2016).
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the court finds
Petitioner's objections are without merit and adopts the
Magistrate Judge's Report (ECF No. 12). Accordingly, this
action is DISMISSED without prejudice.
certificate of appealability will not be issued absent
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A prisoner
satisfies this standard by demonstrating that reasonable
jurists would find both that his constitutional claims are
debatable and that any dispositive procedural rulings by the
district court are also debatable or wrong. SeeMiller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
the instant matter, the court finds that Petitioner has
failed to make "a ...