United States District Court, D. South Carolina, Florence 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 Thomas E. Rogers, III, made
in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina. Bernard Weiters,
Jr. (“Weiters”), a federal prisoner proceeding
pro se, filed a petition seeking habeas corpus relief
pursuant to 28 U.S.C. § 2241. Magistrate Judge Rogers
recommends dismissing the petition with prejudice and without
requiring the Respondent to file an answer or return because
28 U.S.C. § 2255 is not inadequate or ineffective to
test the legality of his conviction. (R&R 4, ECF No. 6.)
filed objections to the Report and Recommendation on August
29, 2017.(Objs., ECF No. 10) 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 Weiters' objections
are nonspecific, 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. Weiters objects that the magistrate judge
erred in finding that the § 2255(e) savings clause does
not authorize the instant § 2241 petition because §
2255 was not inadequate or ineffective to test the legality
of his detention. (Objs. 1-3, ECF No. 10.) Specifically,
Weiters 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 in
light of Mathis v. United States, 136 S.Ct. 2243
(2016). (Id., ECF No. 10.)
§ 2255(e) savings clause allows a prisoner to challenge
the validity of a conviction under § 2241, if the
prisoner can demonstrate that § 2255 is
“inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e).
§ 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
re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
Additionally, the savings clause in § 2255(e) applies
only to claims in which Weiters 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, Weiters does not allege that he is actually
innocent of the underlying conviction. Instead, Weiters is
challenging 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 § 2255 was
not inadequate or ineffective to test the legality of his
detention. (R&R 4, ECF No. 6.) Accordingly, Weiters may
not proceed under § 2241.
after a thorough review of the magistrate judge's Report
and Recommendation and the record in this case, the court
adopts the magistrate judge's Report and Recommendation
and incorporates it herein.
that Weiters' § 2241 petition, docket number 1, is
dismissed with prejudice and without requiring the Respondent
to file an answer or return. IT IS SO
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 ...