United States District Court, D. South Carolina, Anderson/Greenwood Division
Chester Lee Barnes, Petitioner, Pro Se.
Travis Bragg, Respondent, represented by Robert F. Daley,
Jr., U.S. Attorneys Office.
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, Magistrate Judge.
matter is before the Court on Respondent's motion to
dismiss. [Doc. 16.] Petitioner is a federal prisoner,
proceeding pro se, who seeks relief pursuant to 28 U.S.C. Â§
2241. [Doc. 1.] Pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C.,
this magistrate judge is authorized to review post-trial
petitions for relief and submit findings and recommendations
to the District Court.
filed this Petition for writ of habeas corpus on July 16,
2015. [Doc. 1.] On November 10, 2015,
Respondent filed a motion to dismiss [Doc. 16] and a return
and memorandum [Doc. 17]. On November 12, 2015, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised to respond to the motion and of the
possible consequences if he failed to adequately respond.
[Doc. 19.] Petitioner's response in opposition was filed
on December 7, 2015. [Doc. 21.]
carefully considered the parties' submissions and the
record in this case, the Court recommends Respondent's
motion to dismiss be granted.
Conviction, Appeal, and Previous Collateral Attack
to a guilty plea, Petitioner was sentenced in the United
States District Court for the Eastern District of North
Carolina on July 29, 2008 to 320 months' imprisonment for
violation of 21 U.S.C. Â§ 841(a)(1)-intent to distribute more
than five grams of cocaine base-and violation of 18 U.S.C. Â§
924(c)(1)(A)-possession of a firearm in furtherance of a drug
trafficking crime. [E.D. N.C. Case No. 5:07-cr-00351-BO-1,
Doc. 31]. Specifically, Petitioner was sentenced
to consecutive sentences of 260 months' imprisonment for
his conviction for possession with intent to distribute more
than five grams of cocaine and sixty months' imprisonment
for possession of a firearm in furtherance of a drug
trafficking crime. [ Id. ] Petitioner did not file a
direct appeal. On February 9, 2012, Petitioner filed a motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. Â§ 2255. [ Id., Doc. 33.] The motion was
dismissed as untimely. [ Id., Doc. 46.]
Subsequently, the Fourth Circuit Court of Appeals affirmed
the dismissal of Petitioner's Â§ 2255 motion. United
States v. Barnes, 509 F.Appx. 279 (4th Cir. 2013)
Petition and Motion to Dismiss
16, 2015, Petitioner filed the instant Â§ 2241 Petition. [Doc.
1.] Petitioner challenges a career offender sentence
enhancement imposed under Â§ 4B1.1 of the United States
Sentencing Guidelines and alleges that one of his prior
convictions used to enhance his sentence no longer qualifies
as a predicate offense in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011). Petitioner argues
that in light of Simmons, he should not have been
classified as a career offender, and that his advisory
guideline range was therefore calculated incorrectly. [Doc. 1
first argues that the waiver contained in Petitioner's
plea agreement precludes Petitioner's right to attack his
conviction and sentence. [Doc. 16-1 at 4-5.] Second,
Respondent asserts that this Court lacks jurisdiction to
consider Petitioner's 28 U.S.C. Â§ 2241 Petition because
Petitioner cannot meet the conditions pronounced in In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000), to satisfy
the savings clause under 28 U.S.C. Â§ 2255(e) and proceed
under Â§ 2241. [ Id. at 5-7.]
responds that he did not waive the current challenge because
his arguments fall outside the scope of the waiver in his
plea agreement. [Doc. 21 at 2-3.] Further, Petitioner argues
that a Â§ 2255 motion is inadequate and ineffective.
Petitioner claims he meets all three prongs of the test
articulated in In re Jones for determining whether a
successive habeas petition triggers the savings clause of Â§
2255. [ Id. at 3-5.] Last, Petitioner ...