United States District Court, D. South Carolina, Rock Hill Division
Robert L. Sisk, Plaintiff,
L.R. Thomas, Defendant.
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Robert L. Sisk, appearing pro se, is an inmate at
the Federal Correctional Institution - Edgefield in
Edgefield, South Carolina. He brings this action pursuant to
28 U.S.C. § 2241, first, to challenge the legality of
his sentence on the grounds of an improper career offender
enhancement, and second, to challenge the Bureau of
Prison's failure to motion for a reduction in his
sentence. Petitioner has also filed a motion for release
pursuant to Fed. R. App. P. 23.
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
D.S.C., this matter was referred to United States Magistrate
Judge Paige J. Gossett for pretrial handling. The Magistrate
Judge filed a Report and Recommendation on October 21, 2015,
in which she recommended that Petitioner's habeas
petition be summarily dismissed without prejudice. ECF No.
20. The Magistrate Judge determined that a § 2241 habeas
petition is not the proper way to bring forth
Petitioner's challenge as the Petitioner is not asserting
actual innocence. ECF No. 20 3-4. The Magistrate Judge
reasoned that Petitioner raised no factual issues to suggest
that the conduct Petitioner was convicted of was noncriminal.
ECF No. 20 at 5. Instead, Petitioner simply challenges the
“legal classification” of his predicate offense.
Id. On November 5, 2015, Petitioner filed objections
to the Report. ECF No. 23.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court is charged with making a de novo
determination of any portions of the Report and
Recommendation to which a specific objection is made. The
court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or may recommit
the matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
November 16, 2001, a jury in the United States District Court
for the Western District of North Carolina, found Petitioner
guilty of conspiracy to possess with intent to distribute
fifty grams or more of methamphetamine, under 21 U.S.C.
§ 841. Sisk v. United States, No. 05-CV-312,
Order at 2 (W.D. N.C. October 23, 2009). Petitioner was
sentenced to 276 months imprisonment. Id. at 9.
Petitioner's sentence included a “criminal
offender” enhancement under the United States
Sentencing Guidelines, based on two prior convictions for
“assault on a female” under North Carolina state
law. ECF No. 16 at 1-2. Petitioner filed a direct appeal and
a habeas petition under 28 U.S.C. § 2255. ECF No. 14 at
2, 4. Petitioner also claims to have filed a request with the
Director of the Bureau of Prisons, pursuant to 18 U.S.C.
§ 3582, in which Petitioner asked the Director to motion
this court for a reduction in Petitioner's sentence. ECF
No. 16 at 5. According to Petitioner, this request was not
22, 2015, Petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. ECF No. 1.
Petitioner later filed an amended petition on September 3,
2015. ECF No. 14. In his memoranda, Petitioner argues that
the court should modify his sentence and order his immediate
release based on recent case law suggesting that
Petitioner's prior conviction for North Carolina's
“assault on a female” is not a crime of violence.
ECF Nos. 1 at 2; 14 at 8 (citing United States v.
Kelly, 917 F.Supp.2d 553 (W.D. N.C. 2013)).
September 30, 2015, Petitioner filed a supplemental
memorandum in which he added a claim for relief under
Johnson v. United States, 135 S.Ct. 2551 (2015). ECF
No. 16. Additionally, on November 5, 2015, Petitioner filed a
motion, pursuant to Fed. R. App. P. 23, requesting that he be
released on personal recognizance while his habeas petition
remained under review. ECF No. 24. Finally, Petitioner filed
two additional supplements to his amended petition on
December 14, 2015, and April 29, 2016, respectively. ECF Nos.
27 and 29.
first objects to the Magistrate Judge's conclusion that a
§ 2241 habeas petition is an inappropriate vehicle for
bringing his challenge. As a general matter, defendants
convicted in federal court must rely on § 2255 in
seeking habeas relief from their convictions and sentences.
See In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997)
(en banc). However, when § 2255 proves inadequate or
ineffective to test the legality of a detention, a federal
prisoner may pursue habeas relief under § 2241. See
id. This exception, found at § 2255(e), has been
termed the “savings clause”:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
report, the Magistrate Judge reasoned that the savings clause
could only be used where a petitioner alleges actual
innocence of a conviction, which Petitioner fails to do. ECF
No. 20 at 4 (citing United States v. Surratt, 797
F.3d 240, 256 (4th Cir. 2015), reh'g en banc
granted (Dec. 2, 2015)). Petitioner objects to the
Magistrate Judge's reasoning and instead argues that he
need not allege actual innocence of a conviction. Instead,
Petitioner points to a Seventh Circuit case that suggests the
savings clause may be used to challenge the misapplication of
the Guidelines. In Brown v. Caraway, 719 F.3d 583,
588 (7th Cir. 2013), the Seventh Circuit reasoned that
sentences imposed prior to United States v. Booker,
543 U.S. 220 (2005), were based on mandatory Guidelines.
Therefore, the Seventh Circuit continued, these Guideline
sentences had the “force and effect of law” such
that a Guideline maximum was essentially a statutory maximum.
See Brown, 719 F.3d at 588. Based on this
reasoning, the Seventh Circuit held the following:
For a prisoner serving a sentence imposed when the guidelines
were mandatory, a § 2241 habeas petition raising a
guidelines error tests the legality of his detention”
within the meaning ...