United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending the petition for habeas
relief be dismissed with prejudice. For the reasons set forth
below, the Court adopts in part and declines to adopt in part
the Report and Recommendation, and dismisses the petition for
habeas relief without prejudice.
was convicted of child exploitation in the United States
District Court for the District of Puerto Rico and sentenced
to 210 months imprisonment. Petitioner moved in Puerto Rico
to vacate his conviction under § 2255 on December 14,
2016. The motion was summarily denied the next day.
Petitioner's motion to reconsider was denied. The United
States Circuit Court of Appeals for the First Circuit
affirmed the denial on June 16, 2017.
is now incarcerated at the Federal Correctional Institution
in Williamsburg, South Carolina. On September 5, 2017, he
filed a petition for habeas relief under § 2241 in this
Court. On December 6, 2017, the Magistrate Judge recommended
the petition be summarily denied. Petitioner filed timely
objections to the Report and Recommendation.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to
introduce new evidence after the magistrate judge has acted
are disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
Magistrate Judge correctly determined that Petitioner's
argument that the statute under which he was convicted is
void is an attack on the validity of his conviction, which
repeats arguments made in his previously denied § 2255
motion. A challenge to the validity of an underlying
conviction must be construed under § 2255 rather than
§ 2241, unless the petitioner can satisfy the §
2255 savings clause by showing § 2255 is not an adequate
nor effective remedy. Petitioner has not alleged that §
2255 is an inadequate to test the constitutionality of his
conviction. When the Court directed Petitioner to answer an
interrogatory explaining why § 2255 is an inadequate
remedy, he declined and left the interrogatory blank.
Petitioner apparently has filed a § 2241 petition in
this Court challenging his conviction because he is barred
from filing another § 2255 motion without leave of the
Court of Appeals. But a § 2255 motion is not inadequate
merely because it is barred as a successive petition. See
Jiminian v. Nash, 245 F.3d 144, 147-48 (2d Cir. 2001)
Court therefore must construe the petition for habeas relief
as a motion under § 2255 to vacate Petitioner's
conviction. Petitioner previously moved to vacate his
conviction under § 2255. This Court lacks subject-matter
jurisdiction over a successive petition unless the successive
petition is authorized by the United States Court of Appeals
for the Fourth Circuit. Burton v. Stewart, 549 U.S.
147, 153 (2007). The Court therefore agrees with the
recommendation of the Magistrate Judge that the petition
should be dismissed.
Court has considered Petitioner's objections to the
Report and Recommendation. (Dkt. No. 19.) Petitioner's
objections are nonsense. Petitioner repeats his assertion
that Title 18 of the United States Code is void in its
entirety. He asserts that he has some unspecified documents
from the Secretary of the United States Senate supporting
that rather unlikely claim. He also objects that the United
States District Court for the District of South Carolina is
not an Article III court but instead is an "article IV
admiralty" court. He does not explain his reasoning. It
appears to the Court that Petitioner may really mean that the
United States District Court for Puerto Rico, which denied
his first § 2255 motion, is not an Article III court
because Puerto Rico is not a state. The Court makes this
inference because Petitioner quotes from Balzac v. Puerto
Rico, 258 U.S. 298 (1922), which held that the federal
court in Puerto Rico was not an Article III court.
Petitioner's reliance on that 1922 case is misguided
because in 1966 Congress replaced Puerto Rico's Article
IV territorial court with an Article III court. See
Pub. L. 89-571, 80 Stat. 764 (1966).
Magistrate Judge correctly notes that where a defective
pleading cannot be cured by amendment, e.g., where
the defendant is immune from the asserted claim, it
ordinarily should be dismissed with prejudice. But where, as
here, the Court lacks subject-matter jurisdiction over the
claim, the claim must be dismissed without prejudice. S.
Walk at Broadlands Homeowner's Ass 'n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir.
2013) ("A dismissal for... any . .. defect in subject
matter jurisdiction ... must be one without prejudice,
because a court that lacks jurisdiction has no power to
adjudicate and dispose of a claim on the merits."). The
Court therefore declines to adopt the Report and
Recommendation insofar as it recommends dismissal with
prejudice, but otherwise fully adopts the Report and