United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
is a federal detainee in custody both as a federal detainee
and as a former federal prisoner on supervised release.
Petitioner was sentenced by this court. 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
court, Petitioner entered a guilty plea on November 27, 2007,
on counts one and four of the indictment, Possession of a
Firearm in Furtherance of a Drug Trafficking Crime, in
violation of 18 U.S.C. § 924(c)(1), and Possession with
Intent to Distribute 5 Grams or More of Cocaine Base and a
Quantity of Cocaine Base, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C).
U.S. v. Wright, No. 3:07-cr-1012-MGL (ECF No. 42).
Petitioner was sentenced on April 17, 2008 to 130 months
total, with a term of four years of supervised release.
Id. The judgement was amended in February 2012 and
still contained four years of supervised release.
Id. at ECF No. 67. The judgment was amended again in
October 2014. Id. at ECF No. 83. Supervised release
began on November 4, 2014. Id. at ECF No. 85. On
December 7, 2017, Petitioner was arrested for a supervised
release violation. Id. at ECF No. 90.
plea agreement included a waiver of direct appeal or other
post-conviction actions, including proceedings under §
2255, but the waiver did not apply to claims of ineffective
assistance of counsel or prosecutorial misconduct.
Id. at ECF No. 33. Petitioner did not file a direct
appeal or a § 2255 Motion.
argues his attorney was deficient and the arresting officer
did an illegal search and tampered with evidence. Petitioner
alleges since his release he has learned new facts that his
attorney had been disbarred and the officer involved had been
arrested on criminal charges. Petitioner asserts that he was
incarcerated for nine years and did not have knowledge of
other's wrongdoing or how to file and asks that his 2008
conviction be expunged and vacated.
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).
did not attempt to seek relief under § 2255. 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). The fact that Petitioner did not
avail himself of the opportunity to file a motion for relief
under § 2255 within the one-year period of limitation
established by § 2255(f) and may now be
time-barred from doing so does not mean that the
potential relief of § 2255 is inadequate or ineffective;
it simply means that Petitioner is not entitled to it.
See In re Jones, 226 F.3d at 333 (“It is
beyond question that § 2255 is not inadequate or
ineffective merely because an individual is unable to obtain
relief under that provision.”).
trigger the savings clause of § 2255(e) and proceed
under § 2241, Petitioner would have to show that
something more should be considered by this Court than that
authorized by § 2255, such as a retroactive change in
the law as contemplated in I ...