United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
Justin Hawkins (“Petitioner”) filed this pro
se Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (ECF No. 7) challenging a federal sentence
imposed in the United States District Court for the District
of Eastern North Carolina for the offense of use or
employment of a person under the age of eighteen to possess
and distribute in excess of 301 grams of cocaine base.
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02
for the District of South Carolina, the matter was referred
to United States Magistrate Judge Paige J. Gossett. On June
24, 2015, the Magistrate Judge issued a Report and
Recommendation (“Report”) (ECF No. 16)
recommending that the court dismiss Petitioner's Amended
Petition without prejudice and without requiring Respondent
to file a return. This review considers Petitioner's
Objections to the Report (“Objections”) (ECF No.
19) filed July 8, 2015. For the reasons set forth herein, the
court ACCEPTS the Magistrate Judge's Report and DISMISSES
the Petition without prejudice.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
court concludes upon its own careful review of the record
that the factual and procedural summation in the Magistrate
Judge's Report (ECF No. 27) is accurate, and the court
adopts this summary as its own. The court will only recite
herein facts pertinent to the analysis of Petitioner's
is currently confined in Federal Correctional Institution
(“FCI”) Williamsburg, having transferred from FCI
Bennettsville, where he was housed when he filed the Petition
(ECF No. 7). In September of 1998, Petitioner pled guilty in
the Eastern District of North Carolina for the offense of use
or employment of a person under the age of eighteen to
possess and distribute in excess of 301 grams of cocaine base
and was sentenced to 292 months' imprisonment and 10
years of supervised release. (ECF No. 7 at 1-3.)
September 27, 1999, Petitioner filed a motion under 28 U.S.C.
§ 2255. (ECF No. 7 at 11.) The sentencing court denied
this motion and the United States Court of Appeals for the
Fourth Circuit dismissed Petitioner's appeal of the
district court's decision. (Id. at 11-12.)
Additionally, Petitioner filed other motions and petitions to
include a “motion 60(b), ” “petition for
determination, ” “Writ for Audita Querela,
” and “motion for reduction of sentence 18 to 1,
” all of which the sentencing court denied.
(Id. at 12.) On June 17, 2014, Petitioner filed a
second motion under § 2255, which the sentencing court
denied as successive. (Id.) Petitioner appealed the
denial of the motion to the Fourth Circuit, which dismissed
the appeal. See United States v. Hawkins, 600 F.
App'x 137 (4th Cir. 2015).
filed the instant § 2241 Amended Petition (ECF No. 7) on
May 19, 2015, alleging that his federal sentence was
improperly enhanced pursuant to the United States Sentencing
Guidelines (“USSG”) 4b1.1. Petitioner
“acknowledges that he has 2 prior felonies” or
“2 qualifying convictions.” (Id. at
12-13, 26.) However, Petitioner asserted that one offense
used to enhance his sentence is no longer a “class
A1” misdemeanor which carries a maximum 150-day
sentence of imprisonment and no longer qualifies as a
predicate offense for purposes of sentence enhancement under
United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (holding that, for a North
Carolina prior conviction to be considered as a predicate
felony offense, the defendant must have been convicted of an
offense for which the defendant, based on his own criminal
history, could be sentenced to a term exceeding one year).
(Id. at 13, 26.)
8, 2015, the Magistrate Judge issued the Report (ECF No. 16)
recommending that the court dismiss Petitioner's Amended
Petition (ECF No. 7) without prejudice and without requiring
Respondent to file a return. In the Report (ECF No. 16), the
Magistrate Judge found that Petitioner's § 2241
Amended Petition (ECF No. 7) is subject to summary dismissal
because Petitioner cannot challenge his federal conviction
and sentence under §2241 since he is unable to satisfy
the § 2255 savings clause by demonstrating that a §
2255 motion is an inadequate or ineffective means to test the
legality of a prisoner's detention. Additionally, the
Report found that Fourth Circuit precedent holds that the
savings clause “does not extend to petitioners who
challenge only their sentences”. (ECF No. 16 at 5
(citing United States v. Poole, 531 F.3d 263, 267 n.
7 (4th Cir. 2008); see also Rouse v. Wilson, 584 F.
App'x 76 (4th Cir. 2014) (finding that the district court
properly determined that a petitioner could not challenge a
career offender enhancement under § 2241); Farrow v.
Revell, 541 F. App'x 327 (4th Cir. 2013) (holding
that a petitioner's challenge to an Armed Career Criminal
Act (“ACCA”) sentence enhancement was not
cognizable under § 2241 via the § 2255 savings
clause)).) Petitioner only challenged his sentence
enhancement and failed to provide factual allegations to show
that the conduct which he was convicted for has been deemed
non-criminal by any substantive law change since his §
2255 motion. The Report therefore recommended that the
Amended Petition be dismissed without prejudice and without
requiring the Respondent to file a return.
filed his Objections on July 8, 2017. (ECF No. 19.)
LEGAL STANDARD AND ANALYSIS
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court. The recommendation has no
presumptive weight. The responsibility to make a final
determination remains with this court. See Matthews v.
Weber, 423 U.S. 261, 270-71 (1976). This court is
charged with making a de novo determination of those
portions of the Report to which specific objections are made,
and the court may accept, reject, or modify, in whole or in
part, the Magistrate Judge's recommendation, or recommit
the matter with instructions. See 28 U.S.C. §
to a Report and Recommendation must specifically identify
portions of the Report and the basis for those objections.
Fed.R.Civ.P. 72(b). “[I]n the absence of a timely filed
objection, a district court need not conduct a de
novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'” Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Failure to timely file specific
written objections to a Report will result in a waiver of the
right to appeal from an Order from the court based upon the
Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 155 (1985); Wright v. Collins, 766
F.2d 841 (4th Cir. 1985); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984). If the petitioner fails to
properly object because the objections lack the requisite
specificity, then de novo review by the court is not
Petitioner is a pro se litigant, the court is
required to liberally construe his arguments. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court
addresses those arguments that, under the mandated liberal
construction, it has reasonably found to state a claim.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
court has conducted a de novo review of the issues
in this case and concludes that the Magistrate Judge has
properly applied the applicable law. The court specifically
reviewed those conclusions of the ...