United States District Court, D. South Carolina, Charleston Division
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 Mary Gordon Baker, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Antwon Demetriu
Peacock (“Peacock”), a federal prisoner
proceeding pro se, filed a petition seeking habeas corpus
relief pursuant to 28 U.S.C. § 2241. Magistrate Judge
Baker recommends dismissing the petition without prejudice
and without requiring the respondent to file a return because
Peacock has failed to show that 28 U.S.C. § 2255 would
be inadequate or ineffective to test the legality of his
conviction. (R&R 4-7, ECF No. 8.)
filed objections to the Report and Recommendation on June 7,
2017,  and June 22, 2017. (Mot. Judicial Notice, ECF
No. 10); (Objs., ECF No. 12.) Objections 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).
review, the court finds that many of Peacock's objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge's Report and Recommendation, or
merely restate his claims. However, the court was able to
glean one specific objection. Peacock objects that the
magistrate judge erred in construing the instant petition as
a successive § 2255 motion rather than a § 2241
petition. (Objs. 2, ECF No. 12.) Peacock argues that his
claim should be allowed under § 2241 because his
sentencing was so fundamentally defective that his challenge
should be preserved under the § 2255(e) savings clause.
(Id., ECF No. 12.) Specifically, Peacock argues that
he should not have been sentenced as a career offender
pursuant to § 4B1.1 of the United States Sentencing
Guidelines (“USSG”) because his prior convictions
do not qualify as predicates under the USSG. (Id. at
5, ECF No. 12.) Peacock was sentenced as a career offender
for prior convictions for possession with intent to sell and
deliver cocaine, trafficking cocaine by possession,
possession with intent to sell and deliver cocaine, and
possession of a weapon of mass destruction. (Mem. Supp.
§ 2241 Pet. 21, ECF No. 1-1.) Peacock argues that
without the career offender designation, he would have
received a lower sentence. (Mem. Supp. § 2241 Pet. 6-7,
ECF No. 1-1.)
order for Peacock's § 2241 petition to satisfy the
§ 2255(e) savings clause, Peacock must meet the
following three elements:
(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 law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
Additionally, the savings clause in § 2255(e) applies
only to claims in which Peacock alleges actual innocence,
rather than claims challenging sentencing enhancements.
See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.
2010); United States v. Poole, 531 F.3d
263, 267 n.7 (4th Cir. 2008).
instant case, Peacock does not allege that he is actually
innocent of the underlying conviction. Instead, Peacock
solely challenges his career offender sentencing enhancement
under § 4B1.1 based on his prior convictions. As a
result, the magistrate judge did not err in finding that the
instant petition should properly be construed as a successive
§ 2255 petition. See Darden v. Stephens, No.
10-7496, 2011 WL 1625094, at *2 (4th Cir. Apr. 29, 2011)
(unpublished). The court adopts the magistrate judge's
Report and Recommendation and incorporates it herein.
that Peacock's § 2241 petition, docket number 1, is
dismissed without prejudice and without requiring the
respondent to file a return.
OF RIGHT TO APPEAL
Petitioner is hereby notified that he has the right to appeal
this order within sixty (60) days from the date hereof,
pursuant to Rules 3 and ...