United States District Court, D. South Carolina
Howe Hendricks United States District Judge.
matter is before the Court upon Petitioner Alrecka Eugene
McDougald's pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, wherein he seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015) (finding that the definition of prior “violent
felony” in the residual clause of the Armed Career
Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally
vague under due process principles). In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.), the matter was referred to a United
States Magistrate Judge for preliminary determinations.
November 9, 2015, Magistrate Judge Paige J. Gossett issued a
report and recommendation (“Report”) outlining
Petitioner's claims and recommending that the Court
dismiss Petitioner's § 2241 petition for lack of
jurisdiction. Specifically, the Magistrate Judge noted that a
petitioner cannot challenge his federal conviction and
sentence pursuant to § 2241 unless he can satisfy the
savings clause set forth in 28 U.S.C. § 2255, which
allows federal prisoners to proceed under § 2241 when a
motion under § 2255 would prove “inadequate or
ineffective” to test the legality of the
detention. The Fourth Circuit Court of Appeals has
indicated that a § 2255 motion is “inadequate or
ineffective” when the following three criteria are met:
(1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality of the
(2) subsequent to the prisoner's direct appeal and the
first § 2255 motion, the substantive law changed such
that the conduct of which the prisoner was convicted is
deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of constitutional
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
If a federal prisoner files a § 2241 petition that does
not fall within the “savings clause, ” then the
district court must dismiss the “unauthorized habeas
motion . . . for lack of jurisdiction.” Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
the Magistrate Judge determined that Petitioner failed to
satisfy the savings clause. When the Magistrate Judge filed
her Report, the Supreme Court's decision in
Johnson had not yet been made retroactive to cases
on collateral review; however, in Welch v. United
States, the Supreme Court held that Johnson did
announce a substantive rule that applied retroactively on
collateral review. 136 S.Ct. 1257 (2016). Because it is clear
that Johnson announced a new rule of constitutional
law, the Court agrees with the Magistrate Judge that
Petitioner has failed to satisfy the savings clause, as it
does not appear that § 2255 is “inadequate or
ineffective” to test the legality of Petitioner's
detention. See Allah v. Warden of Estill, 2016 WL
4111378 (May 9, 2016) (finding that the court lacked
jurisdiction to consider a § 2241 petition for relief
pursuant to Johnson and noting that the petitioner
could seek permission to file a successive § 2255
petition with the sentencing court); White v.
Werlich, No. 16-300, 2016 WL 1583936 (S.D. Ill. April
20, 2016) (“[B]ecause Johnson announced a new
rule of constitutional law, the holding of Johnson
cannot be the basis for a § 2241 petition, ” but
Johnson “may present grounds for filing a
second or successive § 2255 motion, ” which would
require permission from the appropriate court of appeals). In
fact, when the Magistrate Judge issued her Report, Petitioner
actually had a § 2255 motion pending in the Middle
District of North Carolina, where Petitioner was convicted
and sentenced. More importantly perhaps, a review of the
docket in Petitioner's criminal case indicates that on
August 12, 2016, the Honorable Thomas D. Schroeder granted
Petitioner's § 2255 motion pursuant to
Johnson and resentenced Petitioner on October 7,
2016. See United States v. McDougald, Criminal No.
1:07-110-TDS-1 (M.D. N.C. ), ECF Nos. 63, 64, 69, and 74.
Thus, it appears that Petitioner has already received the
relief he requests in the instant § 2241 petition.
on the foregoing, the Court agrees with the Magistrate Judge
that Petitioner's § 2241 petition does not fall
within the savings clause and must be dismissed for lack of
jurisdiction. In any event, the Court also notes that
Petitioner has already received the relief he requests,
thereby rendering this action moot. For these reasons, the
Court adopts the Magistrate Judge's Report (ECF No. 8),
overrules Petitioner's objections (ECF No. 13), and
dismisses this action for lack of jurisdiction.
IS SO ORDERED.
Fourth Circuit has held that a district court's order
denying relief on a petition pursuant to 28 U.S.C. §
2241 is not appealable unless a circuit justice or judge
issues a certificate of appealability. See,
e.g., Garvin v. Wright, 583 F. App'x
287, 287 (4th Cir. 2014) (citing 28 U.S.C. §
2253(c)(1)(A)). The governing law provides:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing ...