United States District Court, D. South Carolina
Devon Foote, Petitioner, Pro Se.
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
Devon Foote ("Petitioner"), proceeding pro se, is
incarcerated at the Federal Correctional Institution
("FCI") in Bennettsville, South Carolina. He filed
the instant petition for a writ of habeas corpus pursuant to
28 U.S.C. Â§ 2241. Pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the
undersigned is authorized to review such petitions and submit
findings and recommendations to the district judge. For the
reasons that follow, the undersigned recommends that the
district judge dismiss the petition in this case without
requiring the respondent to file an answer.
Factual and Procedural Background
13, 2006, Petitioner pled guilty in the United States
District Court for the Middle District of North Carolina to
three counts of distribution of crack cocaine. United
States v. Wesley Devon Foote, 1:06-cr-177-NCT (M.D. N.C.
2009) (" Foote ") at ECF Nos. 13,
18. He was sentenced on November 2, 2006,
to 262 months' imprisonment. Id., ECF No. 13. On
January 29, 2007, Petitioner filed a notice of appeal, and
the Fourth Circuit Court of Appeals ("Fourth
Circuit") issued an order on October 5, 2007, affirming
Petitioner's sentence. Id., ECF Nos. 15, 21.
Petitioner appealed to the United States Supreme Court, which
subsequently vacated Petitioner's sentence and remanded
the case to the Fourth Circuit. Id., ECF No. 23. On
remand, the Fourth Circuit vacated Petitioner's sentience
and remanded Petitioner's case to the district court for
resentencing. Id. On September 25, 2009, the
district court resentenced Petitioner to 262 months'
imprisonment. Id., ECF No. 32. Petitioner filed a
notice of appeal, and on September 14, 2010, the Fourth
Circuit affirmed his sentence. Id., ECF Nos. 33, 39.
January 21, 2011, Petitioner filed a motion pursuant to 28
U.S.C. Â§ 2255 to vacate, set, aside, or correct his sentence,
as amended on August 3, 2012. Id., ECF Nos. 48, 70.
The district court denied Petitioner's Â§ 2255 motion on
November 7, 2013. Id., ECF No. 89. On November 14,
2013, Petitioner filed a notice of appeal, and on April 27,
2015, the Fourth Circuit affirmed the judgment. Id.,
ECF Nos. 92, 99. Petitioner filed this Â§ 2241 petition
challenging his sentence, arguing he is actually innocent of
the career offender enhancement. [ECF No. 1 at 6-8].
Standard of Review
established local procedure in this judicial district, a
careful review has been made of this petition pursuant to the
Rules Governing Section 2254 Proceedings for the United
States District Court,  the Anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110
Stat. 1214, and other habeas corpus statutes. Pro se
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, 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, 390-91 (4th Cir.
is well established that 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)). In
contrast, a motion filed under Â§ 2241 is typically used to
challenge the manner in which a sentence is executed.
See In re Vial, 115 F.3d at 1194 n.5. A
petitioner cannot challenge his federal conviction and
sentence under Â§ 2241 unless he can satisfy the Â§ 2255
savings clause, which 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); see also Rice, 617
F.3d at 807 (finding that if a federal prisoner brings a Â§
2241 petition that does not fall within the scope of this
savings clause, then the district court must dismiss the
"unauthorized habeas motion... for lack of
Fourth Circuit has held that a petitioner must establish the
following criteria to demonstrate that a Â§ 2255 motion is
inadequate or ineffective to ...