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Carswell v. Ramirez

United States District Court, D. South Carolina

May 15, 2018

Fred Carswell, III, #63439-004, Petitioner,
v.
G. Ramierz, Warden, F.C.I. Williamsburg, Respondent.

          OPINION AND ORDER

          Bruce Howe Hendricks, United States District Judge

         Fred Carswell, (“Petitioner”), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was referred to United States Magistrate Judge Thomas E. Rogers for pretrial handling and a Report and Recommendation (“Report”). Magistrate Judge Rogers recommends that this action be dismissed with prejudice and without requiring Respondent to file a return, as successive and unauthorized. (ECF No. 12 at 6.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.

         BACKGROUND

         Petitioner filed this action challenging his conviction for participation in a drug distribution conspiracy that involved at least 35 grams but less than 50 grams of cocaine base. Petitioner previously filed a motion to vacate pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of Florida, which was denied on January 17, 2008. Petitioner subsequently filed a second motion to vacate pursuant to § 2255 despite the United States Court of Appeals for the Eleventh Circuit's denial of his application for leave to file a successive motion. The District Court for the Southern District of Florida dismissed the civil action associated with that second motion to vacate for lack of jurisdiction on December 30, 2016. In the instant case, Petitioner filed his § 2241 petition on May 11, 2017. (ECF No. 1.) On July 24, 2017, the Magistrate Judge issued a Report (ECF No. 12), and on August 4, 2017, Petitioner filed his objections (ECF No. 19). The Court has reviewed the record, the relevant law, and the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to the 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, 270-71 (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. § 636(b)(1). However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         DISCUSSION

         The Magistrate Judge found that this action is subject to summary dismissal because Petitioner has not demonstrated by factual explanation that he is actually innocent and has not shown that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition.[1] See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Petitioner filed objections to the Report, which the Court will now address.

         First, Petitioner argues that he is entitled to challenge his conviction via a § 2241 petition because § 2255 provides an inadequate or ineffective avenue for relief “when petitioner claims to be legally innocent of crime of which convicted and he has never had unobstructed procedural shot at presenting claim.” (See ECF No. 19 at 4-5 (errors in original).) It is unclear to the Court exactly what Petitioner is claiming through this line of argument. However, it is readily apparent that Petitioner misunderstands the conditions predicate that must be satisfied before he can challenge his conviction by way of a § 2241 petition. Petitioner's first objection is without merit and is overruled.

         Second, Petitioner objects to the Magistrate Judge's conclusion that Petitioner has failed to satisfy the savings clause of § 2255 because he cannot demonstrate the criteria necessary to show that § 2255 is inadequate or ineffective to test the legality of his detention as set forth in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Petitioner states:

Thus, the Petitioner does not rely on a new rule or some change made retroactive. Rather, the Petitioner seeks the correction of a grave fundamental miscarriage of justice because he now sits in a federal prison serving a 360-months term of imprisonment after being tried by a jury, convicted, and sentenced based on an indictment that a Grand Jury handed down for an individual by the name “Fred Carswell, Jr., i.e., (petitioner's father).

(ECF No. 19 at 5-6 (errors in original).) Here, Petitioner is rehashing an argument affirming Petitioner's conviction. See U.S. v. Carswell, 178 Fed.Appx. 1009 (11th Cir. 2006).[2] Petitioner's attempt to capitalize on a ministerial error by vacuously asserting that prosecution of the offenses in question was intended to be directed toward his father is without merit and this objection is overruled.

         Third, Petitioner objects to the Magistrate Judge's conclusion that he has not set forth an actual innocence claim, and asserts that he “has demonstrated by a very detailed factual explanation that he is actually innocent.” (ECF No. 19 at 6-7.) However, this conclusory assertion merely incorporates the same baseless theory that a ministerial error on the indictment somehow exculpates Petitioner for his criminal conduct proven at trial. (See id.) The objection is overruled.

         After de novo review, the Court agrees with the cogent analysis by the Magistrate Judge, and because that analysis evinces no error, the Court need not ...


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