United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
James Washington (“Petitioner”), proceeding
brings this action pursuant to 28 U.S.C. § 2241 for
habeas relief. Petitioner is an inmate at FCI-Edgefield,
a facility of the Federal Bureau of Prisons, and files this
action in forma pauperis under 28 U.S.C. §
Factual and Procedural Background
April 30, 2009, Petitioner pleaded guilty in this court to
one count of unlawful possession with intent to distribute
crack cocaine in violation of 21 U.S.C. § 841 (a)(1),
(b)(1)(B), (b)(1)(C). United States v. Washington,
No. 3:08-cr-00612-JFA-1 (D.S.C.) (“Criminal
Case”). See ECF No. 72 in Criminal Case. On
December 21, 2009, he was sentenced as a career offender
under the sentencing guidelines to a total term of
imprisonment of 188 months. ECF No. 98 in Criminal Case.
Petitioner unsuccessfully appealed his conviction and
sentence. His appeal ended on March 25, 2011. ECF No. 148 in
Criminal Case. On December 28, 2010, Petitioner filed an
initial § 2255 motion, asserting that his counsel was
ineffective for failing to investigate and present mitigating
information from Petitioner's family and his mental
health background and for failing to challenge the incorrect
base amount calculation. Petitioner also alleged that his
guideline sentence was improperly calculated without
consideration of the crack vs. powder cocaine sentencing
rules, and asserted that he should be resentenced under the
then-recently enacted Fair Sentencing Act. ECF Nos. 134,
134-1 in Criminal Case. Petitioner filed an Amended §
2255 motion on April 13, 2011, including the submission of
evidence showing his troubled background, and asserting that
the court improperly departed upward from the sentencing
guidelines because he allegedly did not have the requisite
criminal history to support the departure. ECF No. 149 in
Criminal Case. On August 24, 2011, Petitioner's §
2255 motion was denied. ECF Nos. 163, 164 in Criminal Case.
Petitioner filed a second § 2255 motion based on
United States v. Simmons, 635 F.3d 140 (4th Cir.
2011), which was denied. ECF 167 in Criminal Case. On June
12, 2014, Petitioner filed a third § 2255 motion,
asserting that he should be resentenced in light of
Descamps v. United States, 570 U.S. 254 (2013)
(“sentencing courts may not apply the modified
categorical approach” to determine if a conviction is a
“violent felony” under the Armed Career Criminal
Act (“ACCA”) when the crime of conviction
“has a single, indivisible set of elements”). ECF
No. 176 in Criminal Case. That motion was denied as
successive on April 9, 2015. ECF No. 186 in Criminal Case.
Petitioner thereafter filed additional motions for reduction
of sentence, citing to United States v. McLeod, 808
F.3d 972 (4th Cir. 2015) (S.C. non-violent second-degree
burglary not a proper predicate offense under the ACCA), ECF
No. 192 in Criminal Case; and an authorized fourth §
2255 motion under Johnson v. United States, 135
S.Ct. 2551 (2015), Welch v. United States, 136 S.Ct.
1257 (2016), and In re Hubbard, 825 F.3d 225 (4th
Cir. 2016), ECF No. 206 in Criminal Case. The court denied
both of those motions. ECF Nos. 193, 216, 217 in Criminal
Case. The final § 2255 motion was denied on July 12,
2017. Petitioner thereafter filed the Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 now under
§ 2241 Petition, Petitioner relies on United States
v. McLeod, 808 F.3d 972, to assert that he was
wrongfully sentenced as a career offender because the court
used a prior second-degree burglary conviction as one of the
predicate offenses and failed to adequately conduct a
categorical approach analysis, resulting in a sentence that
amounts to a fundamental defect. ECF No. 1 at 6, 11.
Petitioner cites to the Fourth Circuit Court of Appeals'
opinion in Wheeler v. United States, 886 F.3d 415,
428 (4th Cir. 2018), as the basis for his contention that he
should be allowed to raise this sentencing-related claim
under § 2241 because the § 2255 remedy is
inadequate and ineffective to test the validity of his
detention. ECF No. 1 at 9. Petitioner asks this court to
order that his career offender designation be removed and
that he receive “a normal guideline sentence . . .
.” Id. at 14.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
this case. The review was conducted pursuant to the
procedural provisions of the Rules Governing Habeas Corpus
Cases Under Section 2254 and the Anti-Terrorism and Effective
Death Penalty Act of 1996, and 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); Todd v. Baskerville, 712 F.2d 70 (4th
Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th
court is required to construe pro se petitions liberally.
Such pro se petitions are held to a less stringent standard
than those drafted by attorneys, see Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a
federal district court is charged with liberally construing a
petition filed by a pro se litigant to allow the development
of a potentially meritorious case. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405
U.S. 319 (1972). Even under this less stringent standard,
however, the Petition submitted in this case is subject to
summary dismissal. The requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts which set forth a claim
currently cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th
a § 2241 habeas petition “‘attacks the
execution of a sentence rather than its validity,'
whereas a § 2255 motion ‘attacks the legality of
detention.'” Brown v. Rivera, No.
9:08-CV-3177-PMD-BM, 2009 WL 960212, at *2 (D.S.C. April 7,
2009) (citation omitted). Here, Petitioner is attacking the
validity of his sentence-the type of claim that should
usually be brought under § 2255 in the sentencing court.
Rice v. Rivera, 617 F.3d 802 (4th Cir. 2010).
However, § 2255 contains a savings clause that permits a
district court to consider a § 2241 petition challenging
the validity of a petitioner's detention when a §
2255 petition is inadequate or ineffective to test the
legality of his detention. Id. The savings clause
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). In other words, as applied here,
Petitioner's § 2241 Petition is barred unless he can
demonstrate that the relief available to him under §
2255 is inadequate or ineffective.
trigger the “savings clause” of § 2255(e)
and now proceed under § 2241, Petitioner must show that
something more should be considered by the court than that
authorized by § 2255, such as a retroactive change in
the law as contemplated in United States v. Wheeler,
886 F.3d at 428. In Wheeler, the Fourth Circuit
Court of Appeals concluded that “§ 2255(e) must
provide an avenue for prisoners to test the legality of their
sentence pursuant to § 2241.” Wheeler,
886 F.3d at 428. The Fourth Circuit Court of Appeals
announced a new savings clause test for allegedly erroneous
sentences in Wheeler. Under the new test, the
savings clause is satisfied if:
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this ...