United States District Court, D. South Carolina
Philip D. Smith, #42394-039, Petitioner,
Bryan M. Antonelli, Respondent.
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
is a federal prisoner in custody in South Carolina at
FCI-Williamsburg. Petitioner was sentenced by the U.S.
District Court, Northern District of Georgia. 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
April 19, 2010, Petitioner pleaded guilty to using a firearm
during and in relation to a crime of violence, particularly
carjacking. (ECF Nos. 1, 64-1, 84, No. 1:09-cr-79-SCJ,
N.D.G.A.). The count was under 18 U.S.C. § 924(c)(1)(A).
Petitioner was sentenced to fifteen years followed by five
years supervised release. (ECF No. 1 at 3, instant case).
Petitioner filed a § 2255 motion in the sentencing
court, which was denied. (ECF No. 109, N.D.G.A.). Petitioner
now argues that § 2255 is inadequate to test the
legality of his detention based on Sessions v.
Dimaya, 138 S.Ct. 1204 (April 17, 2018) and U.S. v.
Salas, 889 F.3d 681 (10th Cir. May 4, 2018).
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); In
other words, as applied here, Petitioner's § 2241
action is barred unless he can demonstrate that the relief
available to him under § 2255 is inadequate or
ineffective. Petitioner was unsuccessful in seeking relief
under § 2255 in his petition in his sentencing court.
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 Fourth Circuit established a test for when a petitioner
may meet the savings clause under § 2255 when he
contests his sentence, not only his conviction. U.S. v.
Wheeler, 886 F.3d 415 (4th Cir. 2018). Section
“2255 is inadequate and ineffective to test the
legality of a sentence when: (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 retroactive change, the sentence now presents an
error sufficiently grave to be deemed a fundamental
defect.” Id. at 429.
of this issue is appropriate under § 1915 review because
the § 2255 savings clause is a jurisdictional
requirement and subject matter jurisdiction may be raised
sua sponte. In the past, the Fourth Circuit has held
that if a petitioner cannot meet the savings clause
requirements then the § 2241 petition “must be
dismissed for lack of jurisdiction.” Rice, 617
F.3d at 807. In Wheeler, the Fourth Circuit again
held that “the savings clause is a jurisdictional
provision.” Wheeler, 886 F.3d at 423. Thus, an
analysis of whether Petitioner meets the new four factor
savings clause test created in Wheeler is set forth
argues his § “924(c) conviction has been declared
unconstitutional by” Sessions v. Dimaya, 138
S.Ct. 1204 (Apr. 17, 2018) and U.S. v. Salas, 889
F.3d 681 (10th Cir. May 4, 2018). (ECF No. 1 at 8).
Petitioner argues these cases were decided after his direct
appeal and § 2255, and argues thus he meets the
Wheeler test. (ECF No. 1 at 8).
appears to be able to meet the first requirement that his
sentence was legal at the time of sentencing. As for the
second factor, “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, ” Petitioner cannot
meet the second element. To the extent the Dimaya
case changed the law, it did not decide Petitioner's
§ 924(c) issue. The United States Supreme Court held in
Dimaya that the residual clause definition of
“crime of violence” as contained in the
Immigration and Nationality Act's definition of
aggravated felony ...