United States District Court, D. South Carolina, Rock Hill Division
OPINION & ORDER
Timothy M. Cain United States District Judge
matter is before the court on Petitioner Heliodoro
Vela-Cavazos' (“Petitioner”) petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. In
accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2), D.S.C., all pre-trial proceedings were referred
to a magistrate judge. On February 19, 2017, Magistrate Judge
Paige J. Gossett filed a Report and Recommendation
(“Report”) recommending the Petition be dismissed
without prejudice and without requiring Respondent to file a
return. (ECF No. 10). On March 1, 2017, Petitioner timely
filed objections to the Report. (ECF No. 15).
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).
9, 2014, a federal grand jury sitting in the Southern
District of Texas, Houston Division, returned a one count
indictment charging Petitioner with reentry of a removed
alien in violation of 8 U.S.C. § 1326(a) and (b).
Petitioner pled guilty and was sentenced to 57 months
imprisonment. Petitioner filed a direct appeal which was
affirmed on August 18, 2015. He then filed a petition for a
writ of certiorari with the United States Supreme Court which
was denied on October 13, 2015. He states that he has not
filed a habeas petition pursuant to 28 U.S.C. § 2255.
(ECF No. 1 at 4).
habeas Petition, Petitioner argues that, in light of the
holding in Johnson v. United States, 135 S.Ct. 2551
(2015), declaring the residual clause in the Armed Career
Criminal Act (“ACCA”) unconstitutionally vague,
his sentencing enhancement under the ACCA is likewise
unconstitutional and must be vacated. Specifically, he claims
that pursuant to Johnson, his prior conviction of
burglary no longer qualifies as a crime of violence. However,
“it is well established that defendants convicted in
federal court are obliged to seek habeas relief from their
convictions and sentences through § 2255, ” not
through a petition filed pursuant to § 2241. Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)).
as the magistrate judge determined, in this case, there is no
plausible allegation that the savings clause permits
Petitioner to bring his claims under § 2241. First,
Petitioner never filed a § 2255 action with the
sentencing court to permit it to review his claims for relief
prior to filing this Petition. A prisoner in federal custody
should first proceed with a § 2255 motion before
attempting to satisfy the “savings clause.”
See Hernandez v. Drew, 371 Fed.Appx. 991, 993 (11th
Cir. Apr. 7, 2010) (noting that a prisoner may not circumvent
the requirements for filing a § 2255 motion merely by
filing a § 2241 petition). Further, Petitioner cannot
meet the second prong of In re Jones (that
subsequent to his appeal and first § 2255 motion the
substantive law changed such that the conduct of which he was
convicted is deemed not to be criminal) because he has not
ever had a decision on a first § 2255 motion.
Accordingly, Petitioner cannot demonstrate that relief under
§ 2255 is “inadequate or ineffective.”
magistrate judge recommends that the court dismiss this
action. However, because the AEDPA's one-year statute of
limitations in 28 U.S.C. § 2255(f) may be an issue in
this case, the court finds it is appropriate to re
characterize the Petition rather than dismiss it without
prejudice because of the proximity of the running of the
one-year time clock. See Castro v. United States,
540 U.S. 375, 381 (2003) (“Federal courts sometimes
will ignore the legal label that a pro se litigant attaches
to a motion and re characterize the motion in order to place
it within a different legal category . . . . to avoid an
unnecessary dismissal . . . . ”). “[A] district
court may not re characterize a prisoner's filing as a
§ 2255 petition without notifying the prisoner of its
intent to re characterize the motion, warning the prisoner of
the effects of re characterization, and giving the prisoner
an opportunity to withdraw or amend his motion.”
United States v. Blackstock, 513 F.3d 128, 131 (4th
Cir. 2008); see also Castro, 540 U.S. 375. In
deciding whether to proceed under § 2255, or as filed,
Petitioner is advised that only one § 2255 motion is
permitted to be filed and a prisoner is not entitled to
“file a second or successive . . . § 2255 motion
to vacate sentence without first receiving permission to do
so from the appropriate circuit court of appeals.”
In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
Finally, if this case is re characterized as a § 2255
action, any subsequent § 2255 motion will be subject to
the restrictions on successive or second § 2255 motions
set forth in 28 U.S.C. § 2255(h).
this action, the court has determined that it is appropriate
to re characterize the Petition as a § 2255 motion
rather than dismiss it without prejudice because of the
proximity of the running of the one-year time clock. If the
court converts this action into a § 2255 motion, the
court would then be required to transfer the motion to
“the court which imposed the sentence. . . . ”
See 28 U.S.C. § 2255(a). See also Shaw v.
United States, 417 Fed.Appx. 311, 312 (4th Cir. 2011)
(finding that instead of dismissing the § 2241 petition,
the interest of justice required the district court to
transfer it to the sentencing court because if a petitioner
were to file a new § 2255 motion in that district the
claims would likely be time-barred). Additionally, if this
action is re characterized as a § 2255 action,
Petitioner is advised that any subsequent § 2255 motion
will be subject to the restrictions on successive or second
§ 2255 motions set forth in 28 U.S.C. § 2255(h).
if Petitioner does not wish to proceed under § 2255, he
may withdraw this Petition by informing the court in writing
of his intent to voluntarily dismiss this action.
See Fed. R. Civ. P. 41(a)(1) (prior to the entry of
an answer or motion for summary judgment by the opposing
party, an action may be voluntarily dismissed by filing a
notice of dismissal). Alternatively, if Petitioner wishes to
proceed under § 2255, he may seek leave to amend the
Petition so that it contains all of the § 2255 claims he
wants to assert. See Castro, 540 U.S. at 383
(listing the notice requirements that must be provided to a
petitioner prior to re characterization); United States
v. Blackstock, 513 F.3d 128 (4th Cir. 2008).
on the foregoing, the court declines to adopt the Report.
Instead, the court hereby notifies Petitioner Vela-Cavazos of
the court's intent to re-characterize the petition as a
§ 2255 motion as required by United States v.
Castro, 540 U.S. 375 (2003). Further, if the court re
characterizes this § 2241 petition as a § 2255
motion, it will be transferred to the Southern District of
Texas for all further proceedings. Petitioner is directed to
file a response to this Order by May 5, 2017, indicating
whether he consents to having this § 2241 petition
converted to a § 2255 motion.
The objections were due February 26,
2017. Although the objections were not docketed until March
1, 2017, because of the mailbox rule, the objections appear
timely. See Houston v. Lack, 487 U.S. 266 (1988)
(holding that a pro se prisoner's date of filing is the
date he delivers it to prison officials). In this case,