United States District Court, D. South Carolina
Diaz, Petitioner, Pro Se.
FCI Bennettsville, Respondent, represented by Jimmie Ewing,
U.S. Attorneys Office.
ORDER AND OPINION
HOWE HENDRICKS, District Judge.
Abel Diaz, ("Petitioner"), proceeding pro
se, filed this application for a writ of habeas corpus
pursuant to 28 U.S.C. Â§ 2241. (ECF No. 1.) In accordance with
28 U.S.C. Â§ 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the
action was referred to United States Magistrate Judge Thomas
E. Rogers, III, for pretrial handling and a Report and
Recommendation ("Report"). Magistrate Judge Rogers
recommends that Respondent's Motion to Dismiss be granted
and the Â§ 2241 petition be denied. (ECF No. 83.) The Report
sets forth in detail the relevant facts and standards of law
on this matter and the Court incorporates them without
Â§ 2241 action, Petitioner, a federal inmate at
FCI-Bennettsville, alleges that he is actually innocent of
the crimes for which he was convicted and that Â§ 2255 does
not provide him an adequate or effective remedy to test the
legality of his detention. Moreover, Petitioner alleges that
the sentence he received exceeds the statutory maximum he
would have faced had his sentence not been improperly
enhanced. ( See ECF No. 1 at 9.)
February 9, 2015, the Magistrate Judge issued his first
Report and Recommendation ("first Report")
recommending that the Â§ 2241 petition be dismissed without
prejudice and without requiring the respondent to file a
return because Petitioner does not allege any new, reliable
evidence that was not presented in his prior proceedings that
supports his innocence, and because Petitioner's
challenge to his Career Offender Status is not appropriate
for review under Â§ 2241 and Petitioner does not satisfy the
savings clause of Â§ 2255. (ECF No. 52.) On February 23, 2015,
Petitioner filed objections to the first Report. (ECF No.
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 Â§ 2241.
(ECF No. 59 at 7); see Surrat, 797 F.3d at
250, 255, 269 (stating that " Jones is not the
exclusive route to Â§ 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.'... We do not decide whether, for instance, a
federal prisoner might bring a Â§ 2241 petition claiming that
the district court unlawfully sentenced him to a term of
imprisonment exceeding the statutory maximum." (quoting
Whalen v. United States, 445 U.S. 684, 689, 100
S.Ct. 1432, 63 L.Ed.2d 715 (1980))).
filed a Motion to Dismiss on October 6, 2015. (ECF No. 67.)
On October 30, 2015, Petitioner filed a Response to the
Motion to Dismiss. (ECF No. 77.) The Magistrate Judge then
issued the instant Report recommending that the Motion to
Dismiss be granted. (ECF No. 83.) Petitioner timely filed
objections (ECF No. 85) 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. Â§ 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 June 14, 2016, Petitioner filed objections (ECF No.
85) in this case, and the Court has thus conducted the
requisite de novo review.
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 the
existence of a genuine issue of material fact where none
exists. See United States v. Wilson, 699
F.3d 789, 797 (4th Cir. 2012).
review, Petitioner's objections provide no basis for this
Court to deviate from the Magistrate Judge's recommended
disposition. The petition for a writ of habeas corpus
pursuant to Â§ 2241 must be denied for the reasons set ...