United States District Court, D. South Carolina, Aiken Division
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE
Dorise (“Petitioner”), proceeding pro se, is an
inmate incarcerated at the Federal Correctional Institution
(“FCI”) in Bennettsville, South Carolina.
Petitioner filed the instant 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 Civil Rule 73.02(B)(2)
(D.S.C.), the case was referred to the Magistrate Judge.
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation (“Report”) and
opines that this Court should dismiss the petition in this
case without requiring the respondent to file an answer. (ECF
No. 17). The Report sets forth, in detail, the relevant facts
and standards of law on this matter, and this Court
incorporates those facts and standards without a recitation.
was advised of his right to object to the Report, which was
entered on the docket on August 31, 2017. (ECF No. 17).
Petitioner filed his objection to the Report on September 18,
2017. (ECF No. 20). Thus, this matter is ripe for review.
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 recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983).
attempts to make several objections to the Report, most of
which are repetitions of Petitioner's assertions in his
Petition (ECF No. 1). Although vague, some of
Petitioner's assertions could be construed as definite
enough to constitute an objection. However, each of these
objections is without merit.
claims that his sentence is unconstitutional and that his
case is “virtually identical” to the ruling in
In re Jones, 226 F.3d 328 (4th Cir. 2000). (ECF No.
20). In that case, the Fourth Circuit examined the term
“use” of a firearm in the context of sentencing,
ultimately concluding that “the Government must prove
active employment of a firearm in order to convict
under the ‘use' prong of § 924(c).” 226
F.3d 328, 330 (4th Cir. 2000). Petitioner uses a similar
argument, asserting that he did not “use” the
requisite “physical force” to be classified as a
career offender under the Federal Sentencing Guidelines
§ 4B1.1. (ECF No. 20 p. 4).
relies heavily on the following cases in his assertion,
claiming that they preclude his being classified as a career
offender because his conduct, in light of these
recent decisions, does not amount to a crime of violence:
Mathis v. United States, 136 S.Ct. 2243, 2551 (2016)
(“[A] state crime cannot qualify as an ACCA predicate
if its elements are broader than those of a listed generic
offense”); Johnson v. United States, 135 S.Ct.
2551 (2015) (finding the residual clause of the Armed Career
Criminal Act unconstitutionally vague); and Descamps v.
United States, 133 S.Ct. 2276 (2013) (clarifying the
approach for determining whether state-law offenses qualify
as violent felonies for the purpose of a sentence enhancement
under the ACCA); Begay v. United States, 553 U.S.
137 (2008) (finding that a DUI did not constitute a
“violent felony” as defined by the residual
clause of the ACCA). The Fourth Circuit, however, has not
“extended the reach of the savings clause to those
petitioners challenging only their sentence, ” actual
innocence is required. See United States v. Poole,
531 F.3d 263, 267 n.7 (4th Cir. 2008). The Supreme Court of
the United States has defined “actual innocence”
as “factual innocence, not mere legal
insufficiency.” Bousley v. U.S., 523 U.S. 614,
623 (1998). Since the holdings in the cases Petitioner cited
have not decriminalized the criminal conduct for which he was
convicted,  his argument is clearly unfounded.
attempts to circumvent the actual innocence requirement,
asserting that the majority panel in the Fourth Circuit for
the United States v. Surratt, 797 F.3d 240,
reh'g en banc granted (Dec. 2, 2015) opinion
left open the possibility that § 2241 could support a
challenge to a sentence exceeding the statutory
maximum.” However, as the Magistrate noted, the
Surratt opinion that Petitioner cites is no longer
legal precedent in the Fourth Circuit. Thus, this argument is
the present case is similar to Baker v. Zych, No.
7:13-512, 2014 WL 1875114, at *2 (W.D. Va. May 9, 2014). In
that case, the petitioner argued that “his prior
convictions for misdemeanor assault, misdemeanor assault on a
law enforcement officer, aiding an escape, misdemeanor simple
assault, and breaking and entering [did] not qualify as
‘violent crimes, ' pursuant to United States v.
Descamps.” Baker, 2014 WL 1875114, at *1.
The court found that the petitioner could not
“challenge his sentence enhancement as an Armed Career
Criminal via § 2241” for three reasons: (1)
“the substantive law has not changed to allow a felon
to possess a weapon”; (2) the Fourth Circuit precedent
did not “extend the reach of 28 U.S.C. § 2255(e)
to those petitioners challenging only their sentence”;
and (3) “case law indicates that Descamps is
not retroactive on collateral review.” Baker,
2014 WL 1875114, at *2 (denying petitioner's § 2241
motion wherein petitioner argued that he was
“improperly sentenced” under § 924(e)).
argues that this Court should apply Descamps
retroactively, relying heavily on the decisions in Brown
v. Caraway, 719 F.3d 583 (7th Cir. 2013) and Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016). In Brown
the Seventh Circuit Court of Appeals held that
“sentences imposed pursuant to erroneous
interpretations of the mandatory guidelines bear upon the
legality of the petitioner's detention for purposes of
the savings clause.” 719 F.3d at 588. Similarly, in
Hill, the Sixth Circuit Court of Appeals applied the
same approach. Although these cases are persuasive, they are
not binding on this court. See Gibbard v. Potter, No.
5:05CV44, 2006 WL 1744176, at *2 (W.D. N.C. Jun. 22, 2006);
Long v. United States, 339 F.Supp.2d 729, 735 n.3
(E.D. Va. 2004). Petitioner's argument that
Descamps should be applied retroactively is thus
also argues that an “erroneously-imposed”
statutory minimum sentence enhancement for a career offender
“can be redressable” under the savings clause in
§ 2255(e). (ECF No. 20 p. 11). Specifically, he argues
that “there is no textual indication that §
2255(e) precludes a challenge to an erroneous enhanced
sentence.” (ECF No. 20 p. 6). However, the Fourth
Circuit has noted that “savings clause relief is
foreclosed for an erroneous sentence within the statutory
maximum, even if the sentence was imposed pursuant to a
mandatory guidelines regime.” Darden v.
Stephens, No. 10-7496, 2011 WL 1625094, at *3 n.2 (4th
Cir. Apr. 29, 2011). In Darden, the petitioner
argued that a recent Supreme Court holding “rendered
one of his prior convictions no longer a crime of violence,
” and thus it was “not a proper predicate”
for his sentence enhancement. Darden, 2011 WL
1625094, at *1. The court rejected the petitioner's
argument and declined to “extend the reach of