United States District Court, D. South Carolina, Beaufort Division
Timothy M. Cain United States District Judge
David Fitzgerald Lightner is a federal inmate currently
incarcerated at the Federal Correctional Institution
Williamsburg in Salters, South Carolina, seeking habeas
corpus relief pursuant to 28 U.S.C. § 2241. In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge’s Report and Recommendation
(“Report”), recommending that the court dismiss
the petition without prejudice and without requiring
Respondent to file a return and that Petitioner’s
motion to stay (ECF No. 10) be denied. (ECF No. 15).
Petitioner was advised of his right to file objections to the
Report (ECF No. 15 at 9), and he filed timely objections.
(ECF No. 18).
Magistrate Judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
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). In the absence
of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
petition filed pursuant to 28 U.S.C. § 2241, Petitioner
seeks to use the savings clause of 28 U.S.C. § 2255 and
Persuad v. United States to attack a life-sentence
enhancement. (ECF No. 1). Petitioner claims that a §
2255 petition is inadequate or ineffective because the Fourth
Circuit has denied him leave to file a successive
application. Petitioner argues that he is entitled to relief
pursuant to United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc) and United States v.
Newbold, 791 F.3d 455 (4th Cir. 2015). (ECF No. 1-1 at
8). He also contends that he is entitled to relief under
Johnson v. United States, 135 S.Ct. 2551 (2015).
(ECF No. 1-1 at 8-9).
magistrate judge recommended that this court find that
Petitioner cannot file this claim pursuant to § 2241 by
way of the savings clause of § 2255. (ECF No. 15). The
magistrate judge examined the three prong test for
determining whether a petitioner can avail himself of the
savings clause, and recommended a finding that he cannot meet
the requirements. (ECF No. 15 at 4-6). The magistrate judge
then considered whether Petitioner is entitled to relief
under Simmons and Newbold and recommended a
finding that he is not entitled to such relief. (ECF No. 15
at 6-7). The magistrate judge also recommended a finding that
Johnson did not apply to the facts of this case.
(ECF No. 15 at 7). And finally, the magistrate judge
recommended that this court deny a motion to stay (ECF No.
10) filed by Petitioner, which sought a stay pending
resolution of the en banc decision in United States v.
Surratt, 797 F.3d 240, 249 (4th Cir. 2015),
reh’g en banc granted (Dec. 2, 2015). (ECF No.
15 at 7-8).
filed objections to the Report. Petitioner first objects to
the magistrate judge’s recommendation on the
applicability of the savings clause to his case. (ECF No. 18
at 2-5). Petitioner next objects to the recommendation that
he is not entitled to relief under § 2241. (ECF No. 18
court finds that magistrate judge properly discussed why
Petitioner cannot avail himself to the savings clause in
§ 2255. In addition to those reasons stated in the
magistrate judge’s Report, the court finds that
Petitioner cannot raise his Simmons argument here
because that argument has been already raised to and ruled
upon by the sentencing court. See In re Jones, 226
F.3d 328, 333 (4th Cir. 2000) (“It is beyond question
that § 2255 is not inadequate or ineffective merely
because an individual is unable to obtain relief under that
provision.”); Levine v. Pettiford, No.
9:06-1265-SB, 2006 WL 2107072, at *2 (D.S.C. July 28, 2006)
(noting that the petitioner “confuse[s] the judicial
language ‘inadequate or ineffective’ with
‘failure of relief to be granted’”);
Burman v. Perdue, No. 5:14-CV-153, 2015 WL 1588069,
at *4 (N.D. W.Va. Apr. 9, 2015) (stating that “a §
2255 motion is not inadequate or ineffective merely because
the claim was previously raised in a § 2255 motion and
denied” (citation omitted)); see also Charles v.
Chandler, 180 F.3d 753, 757 (6th Cir. 1999) (noting that
a petitioner generally only has “one bite at the
post-conviction apple” (quoting United States v.
Barrett, 178 F.3d 34, 57 (1st Cir. 1999))); 28 U.S.C.
§ 2244(a) (“No circuit or district judge shall be
required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge
or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section
§ 2255 petition filed on August 20, 2012, Petitioner
argued that his previous convictions used to enhance his
sentence no longer qualify as predicate crimes after the
Fourth Circuit’s decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). See United States v.
Lightner, No. 93-cr-133-2 at ECF No. 187 (W.D. N.C.
indictment filed July 14, 1993). In rejecting
Petitioner’s argument that two of his prior felony
convictions were improperly used to enhance his federal
sentence, the sentencing court found, in pertinent part:
Defendant confuses his actual term of imprisonment and/or
term of probation with the fact that he personally faced a
sentence in excess of one year, although he did not receive
such a sentence in either case. North Carolina did not
implement Structured Sentencing until 1994, The
Defendant's two prior North Carolina felony convictions
were from 1987 (87CRS55428) and 1988 (88CRS38143). Because
both those state felony convictions were pre-Structured
Sentencing, he actually did face imprisonment in excess of
Id. Petitioner appealed the sentencing court’s
ruling on his § 2255 petition, and the Fourth Circuit
affirmed the decision in an unpublished opinion. United
States v. Lightner, 527 F.App'x 246, 247 (4th Cir.
case, the core of Petitioner’s substantive claims
relate to arguments that he was improperly sentenced due to
the Fourth Circuit’s ruling in Simmons. (ECF
No. 1). Petitioner’s claims relating to
Newbold and Persaud are procedural in
nature. In Newbold, the Fourth Circuit
held that a petitioner could raise a Simmons’
claim on collateral review. 791 F.3d at 460- 61. Petitioner
can and has raised the Simmons issue on collateral
review in a § 2255 motion.
Persaud, the Supreme Court granted certiorari and
vacated the judgment based on a position taken by the
Solicitor General in his brief for the United States.
Persaud v. United States, 134 S.Ct. 1023
(2014). In his brief, the Solicitor General argued, for the
first time in the case, that a petitioner should be permitted
to make a Simmons’ claim using the savings
clause in § 2255. See Brief of the United
States in Persaud v. United States, 2013 WL 708877
(filed Dec. 20, 2013). Petitioner confuses the implications
of Persaud. Even if post-Persaud a
Petitioner could use a § 2241 petition to raise this
issue, he still cannot get around the fact that the
sentencing court specifically addressed the applicability of
Simmons to Petitioner’s facts in a § 2255
motion before that court. The reason § 2255 is
“inadequate” in this case is because Petitioner
was denied that relief. Because Petitioner raised this issue
to the sentencing court and because the sentencing court
ruled on that issue, Petitioner cannot raise the
Simmons issue here.See 18 U.S.C. §
finally, even if Petitioner could get a second bite at the
Simmons’ apple, the court finds that
Simmons is inapplicable to Petitioner’s case
for the reasons set forth by the sentencing court.
after a thorough review of the Report and the record in this
case pursuant to the standards set forth above, the court
finds Petitioner's objections are without merit and
adopts the Report and Recommendation (ECF No. 15).
Accordingly, the habeas petition is DISMISSED without
prejudice and without requiring ...