United States District Court, D. South Carolina
OPINION AND ORDER
Howe Hendricks, United States District Judge
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
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
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).
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. See Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Petitioner
filed objections to the Report, which the Court will now
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.
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). 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
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.
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 ...