United States District Court, D. South Carolina, Florence Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner James Robert
Rice's objections to Magistrate Judge Thomas E.
Rogers' report and recommendation (“R &
R”) (ECF Nos. 13 & 7). 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
se filings are held to a less stringent standard than
those drafted by attorneys, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), and federal district courts
must construe such pleadings liberally to allow the
development of potentially meritorious claims, see Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). The liberal
construction requirement, however, does not mean courts can
ignore a clear failure to allege facts that set forth claims
cognizable in federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
seeks resentencing for his drug trafficking and firearms
convictions, which included sentencing under a mandatory
minimum set forth in 21 U.S.C. § 841(b)(1)(A) and an
enhancement under 21 U.S.C. § 851. The Magistrate Judge
recommends that Petitioner's petition be summarily
dismissed because the “savings clause” in 28
U.S.C. § 2255(e) does not allow him to challenge his
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 three objections. First, Petitioner argues that he has
satisfied the savings clause because of the Supreme
Court's ruling in Mathis v. United States, 136
S.Ct. 2243 (2016). In Mathis, the Court held that
courts must use a “modified categorical
approach”-examining the elements of an offense rather
than the means of commission-to determine whether an offense
is a predicate violent felony under the Armed Career Criminal
Act (“ACCA”). Id. at 2257. While
Mathis clarified the application of the ACCA, it did
not change the substantive law such that the conduct of which
Petitioner was convicted-possession and conspiracy to
distribute cocaine, and the use of a deadly weapon to impede
official duties-became noncriminal. Thus, Mathis
does not aid Petitioner in establishing the second prong of
the Jones test.
also objects to the Magistrate Judge's conclusion that
the Fourth Circuit has not extended the reach of the savings
clause to petitions that challenge only a sentence, rather
than a conviction. As the Magistrate Judge indicated, the
Fourth Circuit has said its “precedent has likewise not
extended the reach of the savings clause to those petitioners
challenging only their sentence.” United States v.
Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008). Petitioner
argues that the Magistrate Judge's conclusion is contrary
to Supreme Court and Fourth Circuit precedent, citing
Davis v. United States, 417 U.S. 333 (1974), and
United States v. Maybeck, 23 F.3d 888 (4th Cir.
1994). In Davis, the Supreme Court held that a
petitioner could use a § 2255 proceeding to challenge
his conviction following an intervening change in the law,
regardless of whether the change was a matter of statutory or
constitutional interpretation, provided that change made his
conduct noncriminal. 417 U.S. at 345-48. Davis does
not address the scope of the savings clause, nor did it
involve a challenge only to a sentence and not a conviction.
In Maybeck, the Fourth Circuit held that a §
2255 petitioner was entitled to resentencing given that he
was incorrectly categorized as a career offender. 23 F.3d at
891-95. In Maybeck, unlike in this case, the record
clearly indicated that the petitioner did not have the
requisite number of convictions used to subject him to a
sentence enhancement. Id. at 892. More
significantly, Maybeck did not address the scope of
the savings clause. The Court agrees with the Magistrate
Judge that the Fourth Circuit has not extended the savings
clause to challenges only to sentences. Poole, 531
F.3d at 267 n.7; see also Farrow v. Revell,
541 Fed.Appx. 327, 328 (4th Cir. 2013) (petitioner's
“challenge to his armed career criminal status is not
cognizable in a § 2241 petition”).
also argues that he must be resentenced without the §
851 enhancement “like defendants with ACCA sentences
after Johnson . . . because his prior North
Carolina and Florida drug convictions are not ‘felony
drug offenses.'” (Pet'r's Objs., ECF No.
13, at 8.) Petitioner apparently refers to Johnson v.
United States, 135 S.Ct. 2551 (2015), in which the
Supreme Court struck down a portion of the ACCA. Since
Petitioner's enhancement was not based on the ACCA, it is
not apparent how Johnson supports his argument or
relates to the R & R. Consequently, his objection is
Petitioner asks the Court to hold his case in abeyance until
the Supreme Court reviews McCarthan v. Director of
Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th
Cir. 2017) (en banc), petition for cert. filed sub
nom., McCarthan v. Collins, 2017 WL 3034223
(U.S. July 12, 2017) (No. 17-85). However the Supreme Court
denied that petition for certiorari on December 4, 2017.
McCarthan v. Collins, 138 S.Ct. 502 (2017) (mem.).
Accordingly, the Court declines to hold this case in
foregoing reasons, it is hereby ORDERED that
Petitioner's objections are overruled, that the R & R
is ADOPTED, and that Petitioner's §
2241 petition is therefore DISMISSED.