United States District Court, D. South Carolina
Timothy M. Cain United States District Judge
a federal inmate proceeding pro se, filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner was sentenced in the District Court for the
Western District of Oklahoma, and was, at the time this
motion was filed, confined at the Williamsburg Federal
Correctional Institution in Salters, South Carolina.
Petitioner alleges that he 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)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge’s Report and Recommendation
(“Report”), recommending that Petitioner’s
petition be dismissed without prejudice and without requiring
Respondent to file an answer or return. (ECF No. 14).
Petitioner filed timely objections. (ECF No. 17).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In that case, the court reviews the
Report only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th
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).
Section 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).
court finds that when the Report was filed and
Petitioner’s objections were filed, a remedy under
§ 2255 arguably may not have been available. However,
the United States Supreme Court has since ruled in Welch
v. United States, 136 S.Ct. 1257 (2016), that
Johnson announced a new constitutional rule that
applies retroactively. Thus, a remedy under § 2255 is
now available. 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). The court notes that it
appears that after obtaining authorization from the Tenth
Circuit Court of Appeals, Petitioner filed a § 2255
motion in the sentencing court on May 20, 2016. Robinson
v. United States, No. 5:07-cr-72 (W.D. Okla. 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
Report (ECF No. 14). Accordingly, this action is DISMISSED
addition, a certificate of appealability will not issue to a
prisoner seeking habeas relief 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. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683
(4th Cir. 2001). In this case, the court finds that the