United States District Court, D. South Carolina, Florence Division
Philip D. Smith, Petitioner,
Warden FCI Williamsburg, Respondent.
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
Philip D. Smith, a federal prisoner proceeding pro se, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. See ECF No. 1. The matter is
before the Court for consideration of Petitioner's
objections to the Report and Recommendation (“R &
R”) of United States Magistrate Judge Thomas E. Rogers,
See ECF Nos. 15 & 39. The Magistrate Judge
recommends that the Court summarily dismiss Petitioner's
§ 2241 petition with prejudice and without requiring
Respondent to file a return. R & R at p. 7.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Magistrate Judge recommends summarily dismissing
Petitioner's § 2241 petition because he fails to
establish that a motion under 28 U.S.C. § 2255 is
inadequate or ineffective to test the legality of his
detention. R & R at pp. 4-6. In his objections,
Petitioner rehashes the grounds in his § 2241 petition,
namely that his criminal judgment was vacated and that he has
an “illegal sentence” for his conviction under 18
U.S.C. § 924(c).
indicated in the R & R,
[I]t is well established that defendants convicted in federal
court are obliged to seek habeas relief from their
convictions and sentences through § 2255. It is only
when § 2255 proves inadequate or ineffective to test the
legality of detention, that a federal prisoner may pursue
habeas relief under § 2241. Importantly, the remedy
afforded by § 2255 is not rendered inadequate or
ineffective merely because an individual is procedurally
barred from filing a § 2255 motion.
. . . . More specifically, § 2255 is inadequate and
ineffective-and § 2241 may be utilized-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 law.
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)
(internal citations, quotation marks, and ellipsis omitted).
Here, Petitioner cannot show § 2255 is inadequate or
ineffective because the substantive law has not changed so
that his conduct-possessing a firearm during a carjacking in
violation of 18 U.S.C. § 924(c)(1)(a)-is no longer
criminal. Thus, Petitioner is not entitled to relief under 28
U.S.C. § 2241, and the Court must dismiss his §
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When the district
court denies relief on the merits, a prisoner satisfies this
standard by demonstrating reasonable jurists would find the
court's assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both that
the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a
constitutional right. S ...