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Foote v. Bragg

United States District Court, D. South Carolina

June 16, 2016

Wesley Devon Foote, #XXXXX-XXX, Petitioner,
v.
M. Travis Bragg, Warden, F.C.I. Bennettsville, Respondent.

          Wesley Devon Foote, Petitioner, Pro Se.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         Wesley 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. § 2241. Pursuant to the provisions of 28 U.S.C. § 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.

         I. Factual and Procedural Background

         On July 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.[1] 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.

         On January 21, 2011, Petitioner filed a motion pursuant to 28 U.S.C. § 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 § 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 § 2241 petition challenging his sentence, arguing he is actually innocent of the career offender enhancement. [ECF No. 1 at 6-8].

         II. Discussion

         A. Standard of Review

         Under 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, [2] 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. 1990).

         B. Analysis

         "[I]t 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)). In contrast, a motion filed under § 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 § 2241 unless he can satisfy the § 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. § 2255(e); see also Rice, 617 F.3d at 807 (finding that if a federal prisoner brings a § 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 jurisdiction").

         The Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to ...


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