United States District Court, D. South Carolina
ORDER AND OPINION
Howe Hendricks, United States District Judge
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.
§ 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).
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).
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.)
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.
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.” 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.
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. 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.
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
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.
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
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 ...