United States District Court, D. South Carolina
OPINION & ORDER
M. HERLONG, JR. SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Jacquelyn D. Austin, made
in accordance with 28 U.S.C. § 636(b) and Local Rule
73.02 DSC. Bobby Gene Kilgore
(“Kilgore”), a federal prisoner, filed a petition
seeking habeas corpus relief pursuant to 28 U.S.C. §
2241. Magistrate Judge Austin recommends granting the
Respondent's motion for summary judgment and dismissing
Kilgore's petition. Kilgore filed objections to the
Report and Recommendation. After review and for the reasons
below, the court adopts the magistrate judge's Report and
Recommendation, grants the Respondent's motion for
summary judgment, and dismisses Kilgore's petition.
Factual and Procedural History
Kilgore is currently incarcerated at FCI-Williamsburg.
Kilgore pled guilty and was sentenced to 188 months'
imprisonment in the United States District Court for the
Middle District of Florida on January 10, 2007, for
possession with intent to distribute five grams or more of
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). Kilgore was sentenced as a career offender
under the United States Sentencing Guidelines
(“U.S.S.G.”), which increased his offense level
by 4 points and raised his guideline range from 130-162
months to 188-235 months. (Objs. 1, ECF No. 33.) The United
States Court of Appeals for the Eleventh Circuit affirmed his
conviction on August 24, 2007. (Mot. Summ. J. Ex. 2, ECF No.
26-2.) Kilgore filed a § 2255 motion on September 7,
2010, which was dismissed as untimely and the Eleventh
Circuit affirmed the denial of his § 2255 motion.
Kilgore v. United States, No. 8:06-CR-199-T-24MSS,
2011 WL 940220 (M.D. Fla. Mar. 17, 2011), aff'd,
522 F. App'x 631 (11th Cir. 2013). On May 16, 2016,
Kilgore requested leave to file a second or successive §
2255 motion, in light of Johnson v. United States,
135 S.Ct. 2551 (2015). The Eleventh Circuit denied
Kilgore's application on June 6, 2016. (Pet., Attach. B
(Opinion), ECF No. 1-2.)
filed the instant petition pursuant to § 2241 on June
20, 2016, arguing that he is no longer a career offender
under the United States Sentencing Guidelines
(“U.S.S.G.”) in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). The United States Supreme
Court has granted certiorari in Beckles v. United
States, No. 15-8544 ( S.Ct. June 27, 2016), to decide
whether the holding in Johnson applies to the
residual clause of the career offender guideline, U.S.S.G.
§ 4B1.2(a)(2), and if so, whether it applies
retroactively to cases on collateral review. The magistrate
judge recommends granting the Respondent's motion for
summary judgment and dismissing Kilgore's petition on the
basis that Kilgore may not proceed under § 2241.
(R&R, ECF No. 32.) Kilgore filed objections to the Report
and Recommendation on February 28, 2017. (Objs., ECF No. 33.)
This matter is ripe for review.
Discussion of the Law
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
objects to the magistrate judge's conclusion that §
2255 was not inadequate to test the legality of Kilgore's
detention, and he further alleges that the plain language of
§§ 2241 and 2255 permit Kilgore's motion.
(Objs., generally, ECF No. 33.) The Fourth Circuit has held
that habeas relief pursuant to § 2241 is available only
if a § 2255 motion is inadequate or ineffective to test
the legality of detention. See In re Jones, 226 F.3d
328, 333 (4th Cir. 2000)(citing 28 U.S.C. § 2255).
“It is the petitioner's burden to establish that
his remedy under § 2255 is inadequate or
ineffective.” Charles v. Chandler, 180 F.3d
753, 756 (6th Cir. 1999).
§ 2255 is inadequate and ineffective to test the
legality of a conviction when: (1) at the time of conviction,
settled law of this circuit or the Supreme Court established
the legality of the conviction; (2) subsequent to the
prisoner's direct appeal and 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
226 F.3d at 333-34. Kilgore alleges that his sentence is
unconstitutional in light of Johnson. Kilgore's
objections fail for the simple reason that he has failed to
show that he may proceed with his § 2241 petition.
Further, the fact that Kilgore alleges that he is prevented
from filing another § 2255 because his request to file a
second or successive § 2255 motion has been denied by
the Eleventh Circuit does not alter this court's
conclusion. See 28 U.S.C. § 2255(e) (“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.”). “[T]he remedy afforded by
§ 2255 is not rendered inadequate or ineffective merely
because an individual has been unable to obtain relief under
that provision, or because an individual is procedurally
barred from filing a § 2255 motion.” In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (internal
the court recognizes that the Fourth Circuit in United
States v. Surratt, left open the possibility of relief
under § 2241 for an allegedly unlawful sentence to a
term of imprisonment exceeding the statutory maximum for the
underlying charge. United States v. Surratt, 797
F.3d 240, 269 (4th Cir. 2015), reh'g en banc
granted (Dec. 2, 2015) (stating that the court did
“not decide whether, for instance, a federal prisoner
might bring a § 2241 petition claiming that the district
court unlawfully sentenced him to a term of imprisonment
exceeding the statutory maximum”). However, the Fourth
Circuit has granted rehearing en banc. Pursuant to Fourth
Circuit Local Rule 35(c), “[g]ranting of rehearing en
banc vacates the previous panel judgment and opinion.”
Thus, Jones remains the controlling law of the
Fourth Circuit. Based on the foregoing, the court finds that
Kilgore cannot show that he is entitled to relief under
§ 2241. See, e.g., Rosario v.
F.C.I. Bennettsville, No. 9:16-33-RBH-BM, 2016 WL
4951163, *3 (D.S.C. Aug. 9, 2016).
therefore ORDERED that Respondent's motion for summary
judgment, docket number 26, is granted. It is further ORDERED
that Kilgore's petition is dismissed.