United States District Court, D. South Carolina
OPINION AND ORDER
Howe Hendricks, United States District Judge.
Starks Fincher, Jr. (“Petitioner”), proceeding
pro se, filed this habeas relief action pursuant to
28 U.S.C. § 2241. (ECF No. 1.) In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c), D.S.C., this matter was referred to United
States Magistrate Judge Bristow Marchant, for pre-trial
proceedings and a Report and Recommendation
February 2, 2016, Respondent Warden, FCI Williamsburg
(“Respondent”), filed a motion to dismiss as well
as a return and memorandum. (ECF Nos. 27, 28.) Since
Petitioner is pro se in this matter, the Court
entered an order pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) on February 3, 2016, advising
Petitioner of the importance of a dispositive motion and of
the need for him to file an adequate response to
Respondent’s motion. (ECF No. 29.) In that order,
Petitioner was advised of the possible consequence of
dismissal if he failed to respond adequately. Petitioner
filed a response, which was entered on February 26, 2016.
(ECF No. 31). Magistrate Judge Marchant considered the
response along with the motion to dismiss and the record in
this case, and recommended Respondent’s motion to
dismiss be granted. (ECF No. 33.)
reviewing these pleadings, the Court is mindful of the
Petitioner’s pro se status. When dealing with
a pro se litigant, the Court is charged with liberal
construction of the pleadings. See, e.g., De’Lonta
v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The
requirement of a liberal construction does not mean, however,
that the Court can ignore a petitioner’s clear failure
to allege facts that set forth a cognizable claim. See
United States v. Wilson, 699 F.3d 789, 797 (4th Cir.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The Court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). The Court reviews the
Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district
court need not conduct a de novo review, but instead
must only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation”) (citation omitted). The Magistrate
Judge advised Petitioner of his right to file specific
objections to the Report. (ECF No. 33 at 10.) Petitioner
filed no objections and the time for doing so expired on May
filed his 28 U.S.C. § 2241 petition on April 3, 2015.
(ECF No. 1.) While this § 2241 petition was pending, on
November 24, 2015, Petitioner filed in the United States
Court of Appeals for the Fourth Circuit a motion under 28
U.S.C. § 2244 for an order authorizing the District
Court to consider a successive application for relief under
28 U.S.C. § 2255. (Fourth Circuit Appeal No. 15-377,
Docket No. 2.) In his § 2244 motion, Petitioner raised
the same basis for relief claimed in the instant § 2241
petition, contending that he is entitled to relief from his
ACCA-enhanced sentence because his prior second degree
burglary conviction is no longer a “violent
felony” in light of Johnson v. United States,
135 S.Ct. 2551 (2015) and United States v. McLeod,
808 F.3d 972 (4th Cir. 2015). (Id.) The Fourth
Circuit placed Petitioner’s § 2244 motion in
abeyance (see Id., Docket No. 4) pending a decision
in In re: Hubbard, Appeal No. 15-276, which involved
a request by a federal prisoner to file a successive §
2255 motion on the grounds that Johnson established
a new rule of constitutional law retroactively applicable to
cases on collateral review. In the interim period between
Magistrate Judge Marchant’s Report and the issuance of
this Order, In re: Hubbard was resolved in a manner
granting the federal prisoner’s request for
authorization to file a successive § 2255 motion. In
re Hubbard, No. 15-276, 2016 WL 3181417, at *7 (4th Cir.
June 8, 2016). In that case, the Fourth Circuit stated that
Johnson “announced a new rule of
constitutional law that the Supreme Court made retroactive
and that was previously unavailable.” Id. at
*3 (citing 28 U.S.C. § 2255(h)(2)); see Welch v.
United States, No. 15-6418, 2016 WL1551144, at * 11
(S.Ct. Apr. 18, 2016).
at this time Petitioner has not set forth any facts in his
§ 2241 petition to show that a § 2255 motion would
be “inadequate or ineffective to test the legality of
his detention” because the relevant test requires that
a prisoner show “the new rule is not one of
constitutional law” in order to qualify for relief
under the savings clause in § 2255(e). See In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
Rather, Petitioner’s § 2244 motion currently
pending before the Fourth Circuit, and the proposed
successive § 2255 motion included therein, is the proper
venue through which to challenge his ACCA-enhanced sentence
in light of Johnson and Welch. Petitioner
has timely filed his Johnson-based § 2244
request (November 24, 2015), the period for which expires on
June 26, 2016. (See ECF No. 33 at 8 n.6.) This Court
does not have jurisdiction to entertain Petitioner’s
§ 2241 petition because he may very well be authorized
to vindicate his asserted claims through a successive §
2255 motion. This ruling should not be interpreted as an
opinion regarding the merits of Petitioner’s claims, as
the undersigned declines to offer such an opinion.
thorough review of the record of this matter, the applicable
law, and the Report of the Magistrate Judge, the Court finds
no clear error. Accordingly, the Court adopts and
incorporates the Report (ECF No. 33) by reference into this
Order, to the degree not inconsistent. It is therefore
ORDERED that the Respondent’s motion to dismiss (ECF
No. 28) is GRANTED and the § 2241 petition is dismissed,
OF RIGHT TO APPEAL
parties are hereby notified that any right to appeal this
Order is governed by Rules 3 and 4 of the ...