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Anderson v. FCI Williamsburg Warden Cruz

United States District Court, D. South Carolina

July 27, 2016

Jeffrey Anderson, Petitioner,
v.
FCI Williamsburg Warden Cruz Respondent.

          ORDER AND OPINION

          Bruce Howe Hendricks, United States District Judge

         Petitioner, Jeffrey Anderson, (“Petitioner”), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action was referred to United States Magistrate Judge Bristow Marchant, for pretrial handling and a Report and Recommendation (“Report”). Magistrate Judge Marchant recommends that Respondent’s Motion to Dismiss be granted and the § 2241 petition be denied. (ECF No. 33.) The Report and Recommendation sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.

         BACKGROUND

         In this § 2241 action, Petitioner, a federal inmate at FCI-Williamsburg, is challenging his status as an Armed Career Criminal and seeks a reduction in his federal sentence. Petitioner was convicted of being a felon in possession of a firearm and sentenced to 235 months in prison. He appealed and his conviction was affirmed by the Fourth Circuit Court of Appeals on October 31, 2007. United States v. Anderson, 249 Fed. App’x 982 (4th Cir. 2007).

         Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which was denied by the sentencing court on September 29, 2008. See United States v. Anderson, Case No. 3:05-cr-179-CMC (D.S.C.) (ECF No. 78). Petitioner then filed a second § 2255 motion, which was denied on November 15, 2010 as a second or successive application without permission from the Circuit Court. See Id. (ECF No. 94).

         On April 25, 2014, Petitioner filed a § 2241 petition, arguing that his prior convictions no longer qualify as predicate offenses for Armed Career Criminal status for the purposes of sentencing him pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The Court adopted the report and recommendation of the Magistrate Judge and dismissed the § 2241 petition, finding no clear error in the absence of timely filed objections by Petitioner. See Anderson v. FCI Williamsburg Warden Cruz, Case No. 9:14-cv-1656-BHH (D.S.C.) (ECF No. 17). The Fourth Circuit dismissed Petitioner’s appeal on October 24, 2014. Anderson v. FCI Williamsburg Warden Cruz, 585 Fed. App’x 114 (4th Cir. 2014). Petitioner states that he filed an application to the Fourth Circuit to file a second or successive petition pursuant to § 2255, and that the application was “recently denied.” (See ECF No. 1-1 at 3.)

         Petitioner attempted to amend his prior § 2255 motion by filing a motion to amend pursuant to Fed.R.Civ.P. 15(c)(2) on July 9, 2015. See United States v. Anderson, Case No. 3:05-cr-179-CMC (D.S.C.) (ECF No. 100). Petitioner argued that he was entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015), because his prior convictions no longer qualified as predicate offenses for Armed Career Criminal status under the ACCA. Petitioner’s motion to amend was dismissed because the court found that the motion “[was], in reality, a successive § 2255 motion, ” which Petitioner filed without permission from the Fourth Circuit. United States v. Anderson, Case No. 3:05-cr-179-CMC (D.S.C.) (ECF No. 101).

         On September 22, 2015, Petitioner sought permission from the Fourth Circuit to file a successive § 2255 motion. The Fourth Circuit placed the motion “in abeyance pending a decision in In re Hubbard, Appeal No. 15-276.”[1] Fourth Circuit Appeal No. 15-300, Dkt. No. 4. On May 4, 2016, after the Supreme Court held that “Johnson announced a substantive rule that has retroactive effect in cases on collateral review, ” see Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Fourth Circuit denied Petitioner’s request to file a successive § 2255 motion on the ground that the holding in Johnson, even if applied retroactively to cases on collateral review, would entitle Petitioner to no relief because his three drug convictions are still valid ACCA predicate offenses after Johnson. Fourth Circuit Appeal No. 15-300, Dkt. No. 6.

         Petitioner brought the instant § 2241 petition on December 16, 2014, restating his arguments that his prior convictions no longer qualify him for sentence enhancement under the ACCA, and asserting that his § 2241 petition is proper (rather than a § 2255 petition) because of recent decisions by the United States Supreme Court in Persaud v. United States, 134 S.Ct. 1023 (2014) and by the Fourth Circuit in Surratt v. United States.[2] Petitioner alleges that his sentence, including the imposition of a mandatory- minimum term of fifteen years confinement, exceeds the statutory maximum he would have otherwise faced had his sentence not been improperly enhanced.

         On May 15, 2015, the Magistrate Judge issued his first Report and Recommendation (“first Report”) recommending that the § 2241 petition be dismissed without prejudice and without requiring the respondent to file a return because Petitioner’s challenge to his sentence enhancement under the ACCA could not satisfy the savings clause of § 2255, and therefore was not appropriate for review under § 2241. (ECF No. 9.) On June 5, 2015, Petitioner filed a “motion” pursuant to the first Report (ECF No. 12), which the Court construed as an objection (see ECF No. 14 at 3). In his objection, Petitioner requested that the Court “hold his petition in abeyance” pending the Fourth Circuit’s decision in the case of United States v. Surratt, 797 F.3d 240 (4th Cir. 2015). In declining to adopt the first Report, the Court noted that the Magistrate Judge issued his initial recommendation without the benefit of Surratt, which left open the question of whether a petitioner whose resultant sentence exceeds the statutory maximum could proceed under § 2241. (ECF No. 14 at 8); see Surrat, 797 F.3d at 250, 255, 269 (stating that “Jones is not the exclusive route to § 2255(e) relief in all situations, ” “a sentence imposed above the proper statutory maximum might present [an] instance of an unlawful sentence, as ‘the power to prescribe the punishments to be imposed upon those found guilty of [federal crimes] resides wholly with Congress’” (quoting Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)), and “[w]e do not decide whether, for instance, a federal prisoner might bring a § 2241 petition claiming that the district court unlawfully sentenced him to a term of imprisonment exceeding the statutory maximum”).

         Respondent filed a Motion to Dismiss on January 15, 2016. (ECF No. 25.) On February 8, 2016, Petitioner filed a Response to the Motion to Dismiss. (ECF No. 29.) The Magistrate Judge then issued the instant Report recommending that the Motion to Dismiss be granted. (ECF No. 33.) Petitioner timely filed objections (ECF No. 35) to the Report. The Court has reviewed those objections, but finds them to be without merit; therefore, it will enter judgment accordingly.

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270- 71 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, 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) (“[D]e novo review [is] unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendation.”). In the absence of a specific objection, the Court reviews the Magistrate’s conclusions only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). On May 16, 2016, Petitioner filed objections (ECF No. 35) in this case, and the Court has thus conducted the requisite de novo review.

         In reviewing these pleadings, the Court is mindful of 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, or that the Court must assume ...


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