United States District Court, D. South Carolina, Charleston Division
MONTI N. BELLAMY, Petitioner,
GIO RAMIREZ, Warden of FCI-Williamsburg, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING
PETITIONER'S PETITION WITHOUT PREJUDICE AND WITHOUT
REQUIRING RESPONDENT TO FILE A RETURN, AND DENYING A
CERTIFICATE OF APPEALABILITY
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE
case was filed as habeas corpus action under 28 U.S.C. §
2241 (section 2241). Petitioner is proceeding pro se. The
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting Petitioner's petition be summarily dismissed
without prejudice and without requiring respondent to file a
return. The Report also recommends a Certificate of
Appealability not be issued. The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court 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. §
Magistrate Judge filed the Report on February 2, 2018, ECF
No. 9, and the Clerk of Court entered Petitioner's
objections to the Report on March 16, 2018, ECF No. 15. The
Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
objects the Magistrate Judge erred in suggesting his petition
should be dismissed. The Magistrate Judge suggested because
Petitioner sought to challenge enhancement of his sentence,
and because he did not meet the requirements of 28 U.S.C.
§ 2255's (section 2255) savings clause, section 2241
was not the appropriate avenue for relief. The Magistrate
Judge further recommended the Court lacked jurisdiction over
Petitioner's section 2241 petition, and accordingly must
dismiss the petition. Finally, the Magistrate Judge suggested
a Certificate of Appealability be denied. Petitioner objects
he was not an Armed Career Criminal (ACC) because his prior
drug convictions were not serious drug offenses. Thus, he
argues, his sentence as an ACC, which was above the otherwise
applicable statutory maximum sentence, raises a
constitutional issue, and the Court has jurisdiction over his
petition. The Court agrees with the Magistrate Judge.
here challenges the validity of his sentence. “[I]t is
well established that defendants convicted in federal court
[like Petitioner] are obliged to seek habeas relief from
their convictions and sentences through § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Section 2241, by contrast, can be used to attack the
execution of a sentence. In re. Vial, 115 F.3d 1192,
1194 n.5 (4th Cir. 1997). Thus, the proper method for
Petitioner to challenge the validity of his sentence is a
motion under section 2255, not one under section 2241.
section 2255 motion is generally the sole method for a
petitioner convicted in federal court to challenge the
validity of his sentence. Rice, 617 F.3d at 807. A
petitioner may, however, seek relief under section 2241 when
section 2255 “proves ‘inadequate or ineffective
to test the legality of . . . detention.'”
Vial, 115 F.3d at 1194 (quoting 28 U.S.C. §
2255(e)). Section 2255 is inadequate and ineffective such
that relief may be sought under section 2241 when: 1) at the
time of conviction, the conviction was legal, 2) after direct
appeal and a first 2255 motion, the law changed, rendering
the conviction no longer legal, and 3) petitioner is unable
to avail himself of section 2255 because the change in law is
not constitutional in nature. Rice, 617 F.3d at 807
(citing In re. Jones, 226 F.3d 328, 333-34 (4th Cir.
2000)). “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 . . . .”
Vial, 115 F.3d at 1194 n.5 (citations omitted).
filed a section 2255 motion on June 1, 2012. United
States v. Bellamy, No. 4:11-cr-00271-RBH-1, ECF No. 59
(D.S.C. June 1, 2012). The Court denied Petitioner's 2255
motion. Id., ECF No. 83 (D.S.C. Sept. 29, 2014).
Petitioner filed a second section 2255 motion, id.,
ECF No. 118 (D.S.C. July 25, 2016), which the Court dismissed
without prejudice, id., ECF No. 123 (D.S.C. July 26,
2016). In the dismissal Order, the Court noted that a second
or successive petition under section 2255 must be certified
by the Court of Appeals, and Petitioner had not done so.
Id. Petitioner avers on May 31, 2017, he sought the
certification of the Fourth Circuit Court of Appeals to file
a successive motion under 2255; the Fourth Circuit denied
Petitioner's request on June 7, 2017. Petitioner filed
the instant petition under section 2241 on July 7, 2017. ECF
was procedurally barred from bringing a successive petition
under section 2555. Such a bar, however, does not render the
remedy available under section 2255 inadequate or ineffective
so as to justify Petitioner seeking relief under section
2241. Further, the Fourth Circuit has not extended section
2255(e)'s savings clause with its exception for cases
where section 2255 is inadequate or ineffective to claims
based solely sentencing, such as Petitioner's claim.
United States v. Poole, 531 F.3d 263, 267 n.7 (4th
Cir. 2008) (“Fourth Circuit precedent has . . . not
extended the reach of the [section 2255(e)] savings clause to
those petitioners challenging only their sentence.”).
Petitioner concedes no Fourth Circuit precedent allows
section 2255(e)'s savings clause to be extended to such a
claim. ECF No. 19 at 1. For those reasons, section 2241 is
not the appropriate vehicle for Petitioner's claim.
Petitioner's claim could not properly be brought under
section 2241, this Court lacks jurisdiction over, and must
dismiss, the claim. See Rice, 617 F.3d at 807.
(“[A] federal prisoner is entitled to pursue a §
2241 motion only when he had no opportunity to utilize a
§2255 motion to take advantage of a change in the
applicable law. If, conversely, the prisoner had an
unobstructed procedural shot at filing a § 2255 motion
to take advantage of such a change, a § 2241 motion is
unavailable to him, and any otherwise unauthorized habeas
motion must be dismissed for lack of jurisdiction.”).
Petitioner had the opportunity to file a section 2255 motion.
That such a motion was procedurally barred does not render
section 2255 inadequate or ineffective. Thus,
Petitioner's section 2241 claim is not properly before
this Court, and the Court must dismiss the claim for lack of
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Petitioner's objections, adopts the Report, and
incorporates it herein. Therefore, it is the judgment of this
Court that Petitioner's petition is summarily
DISMISSED without prejudice and without
requiring respondent to file a return. To the extent
Petitioner requests a certificate of appealability from this
Court, that certificate is DENIED.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this Order
within thirty days from the date hereof, pursuant to Rules 3