United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
is a federal prisoner in custody in South Carolina at FCI
Edgefield. Petitioner was sentenced by the U.S. District
Court, Southern District of Florida. He is seeking habeas
relief under § 2241 and proceeding in this action
pro se. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C.,
the undersigned is authorized to review such petitions for
relief and submit findings and recommendations to the
established local procedure in this judicial district, a
careful review has been made of the pro se pleadings
pursuant to the procedural provisions of the Anti-Terrorism
and Effective Death Penalty Act of 1996. The review has been
conducted in light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Maryland House of Correction, 64 F.3d 951 (4th Cir.
1995)(en banc); Todd v. Baskerville, 712
F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d
1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). The Petitioner is a pro
se litigant, and thus his pleadings are accorded liberal
construction. Erickson v. Pardus, 551 U.S. 89, 94
(2007)(per curiam); Cruz v. Beto, 405 U.S.
319 (1972). Even under this less stringent standard, the
petition is subject to summary dismissal.
this court is charged with screening Petitioner's lawsuit
to determine if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts. Following the required initial review, it is
recommended that the Petition submitted in this case should
was convicted in 2007 for conspiring to possess with intent
to distribute. (ECF No. 1 at 3). Petitioner argues two
grounds which are very similar. Petitioner argues he is
innocent of count two of the indictment because the
indictment stated cocaine and
marijuana, while the jury instruction stated cocaine
or marijuana. Petitioner contends
the court illegally amended his indictment. The statutory
charge itself only requires any controlled substance, not two
controlled substances and does not particularly require
cocaine and marijuana. The jury verdict was not guilty as to
marijuana as to count two. The Eleventh Circuit affirmed
Petitioner's conviction and specifically addressed the
change in “and” to “or.” U.S. v.
Nelson, Jackson, Rivers, Jones, 321 Fed.Appx. 904, 907
(11th Cir. Mar. 25, 2009)(table unpublished). Plaintiff has
previously filed a § 2255 Motion, which was denied by
the sentencing district court and affirmed by the Eleventh
Circuit. See No. 10-618535-CIV Docket, Order dated
September 28, 2012 (S.D. Fl.).
instant Petition, filed pursuant to 28 U.S.C. § 2241, is
subject to summary dismissal because “it is well
established that defendants convicted in federal court are
obliged to seek habeas relief from their convictions and
sentences through § 2255.” Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)).
Petitioner cannot challenge his federal conviction and
sentence under § 2241, unless he can satisfy the §
2255 savings clause, which states:
An application for a writ of habeas corpus in 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); see also Reyes-Requena v.
United States, 243 F.3d 893, 901 (5th Cir. 2001); In
other words, as applied here, Petitioner's § 2241
action is barred unless he can demonstrate that the relief
available to him under § 2255 is inadequate or
ineffective. Petitioner was unsuccessful in seeking relief
under § 2255 in his petitions in the sentencing court.
However, “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.” See In re
Vial, 115 F.3d at 1194 n.5 (citations omitted).
fails to satisfy 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. In In re Jones, 226 F.3d 328
(4th Cir. 2000), the court held that 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 constitutional law.
Id. at 333-34.
test was formulated expressly to provide a remedy for the
“fundamental defect presented by a situation in which
an individual is incarcerated for conduct that is not
criminal but, through no fault of his own, he has no source