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Sisk v. Thomas

United States District Court, D. South Carolina, Rock Hill Division

September 27, 2016

Robert L. Sisk, Plaintiff,
L.R. Thomas, Defendant.


          Margaret B. Seymour Senior United States District Judge

         Petitioner 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.

         In 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.

         The 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).


         On 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 “process[ed].” Id.

         On July 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)).

         On 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.


         A. Savings Clause

         Petitioner 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.

         In her 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 ...

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