United States District Court, D. South Carolina
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
12) recommending that this Court dismiss Petitioner's
habeas petition with prejudice because the shortcomings
evident in the pleadings cannot be corrected by amendment.
For the reasons set forth below, this Court adopts the R.
& R. as the order of the Court. The habeas petition is
dismissed with prejudice.
Background and Factual Summary
Marcellus Brooks pleaded guilty to being a felon in
possession of a firearm and ammunition on October 13, 2009.
Petitioner was sentenced to 210 months in prison as an armed
career offender under 18 U.S.C. § 924(e) (the Armed
Career Criminal Act, "ACCA"). Petitioner's
appeal was unsuccessful and he did not file a motion pursuant
to 28 U.S.C. § 2255. Petitioner has now filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, claiming that he is "legally and
factually innocent" of being an armed career offender
based on the Supreme Court's decision in Mathis v.
United States, 136 S.Ct. 2243 (2016). He also claims
that some of his previous convictions were improperly used to
support his ACCA sentence enhancement based on the Supreme
Court's decision in Descamps v. United States,
133 S.Ct. 2276(2013).
Magistrate Judge explained that Petitioner's § 2241
Petition is subject to summary dismissal because defendants
convicted in federal court are obliged to seek habeas relief
through § 2255 unless they are able to satisfy the
§ 2255 savings clause. (Dkt. No. 12 at 3.) Pursuant to
the savings clause, "An application for a writ of habeas
corpus on 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." 28
U.S.C. § 2255(e).
did not file a § 2255 motion in this criminal matter,
and the time to do so has now expired. (Id. at 3-4.)
The Magistrate Judge explained that it is settled that
"the 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 (citations omitted).
Magistrate Judge also explained that Petitioner cannot
satisfy the criteria set forth by the Fourth Circuit to
determine whether a § 2255 motion would be inadequate or
ineffective to test the legality of a prisoner's
detention because Petitioner cannot demonstrate that the
conduct for which he was convicted has been deemed
non-criminal by any substantive change in the law, and the
cases he relies on do not apply retroactively in the Fourth
Circuit. (Id. at 4-5.) Finally, the Magistrate Judge
recommended that Petitioner's habeas petition be
dismissed because he has failed to state a valid claim of
actual innocence, and the Fourth Circuit has not extended the
reach of the § 2255 savings clause to prisoners, such as
Petitioner in this case, who challenge only their sentences.
(Id. at 5.)
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate's Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 US. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the R. & R.
to which specific objection is made. Fed.R.Civ.P. 72(b)(2).
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). Where
the plaintiff fails to file any specific objections, "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." See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted).
has filed timely objections to the Magistrate's R. &
R. (Dkt. No. 20.) He claims that he has satisfied the §
2255 savings clause and should be allowed to proceed under
§ 2241. Although Petitioner has specifically objected to
the recommendations in the R. & R., he relies primarily
on precedents from other circuits without addressing the
various Fourth Circuit cases that the Magistrate Judge
explained preclude him from seeking relief under § 2241.
See In re Vial,115 F.3d 1192, 1194 n.5 (4th Cir.
1997) ("the 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
Jones,226 F.3d 328, 333-34 (4th Cir. 2000) (in order to
challenge the validity of a conviction or sentence based on
new law, a petitioner must show: "(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