United States District Court, D. South Carolina, Aiken Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Gary Lewis
Davis' objections to Magistrate Judge Shiva V.
Hodges' report and recommendation (“R &
R”) (ECF Nos. 10 & 6). The Magistrate Judge
recommends that the Court dismiss Petitioner's 28 U.S.C.
§ 2241 petition (ECF No. 1). For the reasons stated
herein, the Court overrules Petitioner's objections,
adopts the R & R, and dismisses Petitioner's §
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court must conduct a de novo review of any
portion of the R & R to which a timely, specific
objection is made, and the Court may accept, reject, or
modify the Magistrate Judge's findings and
recommendations in whole or in part. Id.
Additionally, the Court may receive more evidence or recommit
the matter to the Magistrate Judge with instructions.
Id. A party's failure to object is taken as the
party's agreement with the Magistrate Judge's
conclusions. See Thomas v. Arn, 474 U.S. 140 (1985).
Absent a timely, specific objection-or as to those portions
of the R & R to which no specific objection is made-this
Court “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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
seeks resentencing following his drug trafficking and firearm
convictions. The Magistrate Judge recommends that
Petitioner's petition be summarily dismissed, without
prejudice, because the “savings clause” in 28
U.S.C. § 2255(e) does not allow him to challenge his
conviction or sentence under § 2241. Specifically, the
Magistrate Judge found that Petitioner could not satisfy the
second criterion used to evaluate the applicability of the
savings clause under In re Jones, 226 F.3d 328 (4th
Cir. 2000). Jones requires a petitioner invoking the
savings clause to establish that “the substantive law
changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal.” Id.
at 334. If a petitioner cannot establish that his claim is
within the scope of the savings clause, the court must
dismiss motion for lack of jurisdiction. See Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
raises two objections, and both restate arguments presented
to, and properly evaluated by, the Magistrate Judge. First,
Petitioner argues that he has satisfied the savings clause
because of the Supreme Court's ruling in Dean v.
United States, 137 S.Ct. 1170 (2017). In Dean,
the Court held that nothing in 18 U.S.C. § 924(c)
prevents a district court from considering the statute's
imposition of a mandatory minimum when calculating an
appropriate sentence for the predicate offense. Id.
at 1178. While it is possible that Petitioner would have
received a shorter total sentence had he been sentenced after
Dean's clarification of the district court's
sentencing discretion, Dean did not change
substantive law to make the conduct of which Petitioner was
convicted any less criminal. Thus, the Dean decision
does not aid Petitioner in establishing the second prong of
the Jones test.
also argues that his indictment was invalid because Count 16,
one of his 18 U.S.C. § 924(c) firearms charges, was
impermissibly duplicitous because it alleged he used and
carried a firearm in relation to two different underlying
offenses. Petitioner points to United States v.
Robinson, 627 F.3d 941, 957 (4th Cir. 2010), for the
assertion that a duplicity claim can sometimes be raised
after trial. In Robinson, the Fourth Circuit
considered a defendant's motion for new trial under Rule
33 of the Federal Rules of Criminal Procedure, following the
discovery of new evidence. Id. at 948. With respect
to the defendant's duplicity claim, the court first
emphasized that Rule 12(b)(3) of the Federal Rules of
Criminal Procedure requires objections to indictments to be
made before trial, though the Rules also allow a court to
consider an objection later, if good cause is shown.
Id. at 957. The court noted that some circuits have
nonetheless reviewed post-trial duplicity claims for plain
error. Id. “Out of an abundance of caution,
” the court then reviewed the defendant's duplicity
claim for plain error and rejected it. Id. While
Robinson does indicate that defendants or
petitioners might, in some circumstances, be able to bring a
post-trial duplicity claim, it did not create a new
procedural mechanism to do so. Unlike the defendant in
Robinson, Petitioner's duplicity claim comes in
a § 2241 petition, so he must still satisfy the savings
clause. While Robinson also dealt with a §
924(c) charge, Petitioner has not established that it changed
the substantive law of § 924(c). Since Petitioner has
not established a change in substantive law, as required by
Jones, he has not established that the savings
clause applies. Consequently, the Court does not have
jurisdiction to evaluate his petition.
foregoing reasons, it is hereby ORDERED that
Petitioner's objections are overruled, that the R & R
is ADOPTED, and that Petitioner's
petition is therefore DISMISSED.