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Stewart v. Bragg

United States District Court, D. South Carolina, Florence Division

July 20, 2018

Glen Allen Stewart Jr., Petitioner,
v.
M. Travis Bragg, Warden, Respondent.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 12) recommending that Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2241 be dismissed without prejudice. For the reasons set forth below, the Court adopts the R & R as the order of the Court and dismisses the petition without prejudice.

         I. Background[1]

         Petitioner Glen Allen Stewart Jr. is a federal prisoner in custody in South Carolina at FCI-Bennettsville. In 2015, a jury in the Eastern District of North Carolina found Petitioner guilty of possession of a firearm and ammunition by a felon under 18 U.S.C. §§ 922(g)(1) and § 924(a)(2) (the Armed Career Criminal Act, "ACCA"). Petitioner was sentenced to 120 months in prison with three years of supervised release. The Fourth Circuit affirmed his conviction on October 13, 2015.

         On June 20, 2016, Petitioner filed a motion under 28 U.S.C. § 2255 in the sentencing court. In addition to alleging ineffective assistance of counsel and prosecutorial misconduct, Petitioner argued that his sentencing enhancement under the sentencing guidelines was improper under Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the ACCA was unconstitutionally vague. Prior to the sentencing court ruling, Petitioner filed a motion to amend in light of Mathis v. United States, 136 S.Ct. 2243 (2016), a Supreme Court case further explaining the application of the categorical approach to determine whether a prior conviction constitutes a violent felony under the ACCA.

         On July 17, 2017, the sentencing court denied Petitioner's § 2255 motion, holding that Johnson does not apply to Petitioner's challenge since the Supreme Court recently held in Beckles v. United States, 137 S.Ct. 886 (2017) that the sentencing guidelines were not subject to a vagueness challenge. The sentencing court further held that Petitioner's arguments regarding Mathis were untimely since Mathis did not set forth a new rule of constitutional law and, regardless, had not been made retroactive to cases on collateral review.

         On April 13, 2018, Petitioner petitioned for a writ of habeas corpus in this Court under § 2241. (Dkt. No. 1.) The sole ground for the petition alleges that the base level of Petitioner's offense was improperly enhanced under the sentencing guidelines, relying on Johnson and Mathis. (Dkt. No. 1 at 6-7.)

         The Magistrate Judge issued a R & R on May 21, 2018, stating that Petitioner could not satisfy the criteria set forth by the Fourth Circuit to determine whether a § 2255 motion would be inadequate or ineffective to test the legality of a prisoner's detention. (Dkt. No. 12 at 2.) Specifically, the Magistrate Judge explained that Petitioner cannot demonstrate that the conduct for which he was convicted has been deemed non-criminal by any substantive change in the law, and the cases he relies on do not apply retroactively. (Dkt No. 12 at 5.) Therefore, the Magistrate Judge recommended that the petition be dismissed without prejudice. (Dkt No. 12 at 6.)

         The Petitioner filed an objection to the R & R on June 15, 2018. (Dkt. No. 23.) In his objection, Petitioner renews his argument that his sentence was improper, relying on Mathis. (Dkt. No. 23 at 4.) Petitioner further notes that the Supreme Court has not ruled on whether Mathis applies retroactively, and cited to Griffith v. Kentucky, 479 U.S. 314 (1987) (discussing retroactivity on direct review) and Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion articulating limited exceptions for retroactive application of new constitutional rules on collateral review) to argue that Mathis should apply retroactively.

         II. Legal Standard

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff fails to file any specific objections, "a district court need not conduct a de novo review, but instead 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) (internal quotation omitted).

         The Petitioner here filed Objections to the R & R, and therefore his ground for relief is reviewed de novo.

         III. Discussion

         As correctly noted by the Magistrate Judge, the Fourth Circuit recently articulated a four part test for the savings clause of § 2255 that a petitioner must meet to be able ...


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