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Simpson v. Antonelli

United States District Court, D. South Carolina

August 21, 2018

Irvin Lamar Simpson, #53679-019, Petitioner,
B.M. Antonelli, Warden, Respondent.



         Irvin Lamar Simpson (“Petitioner”) is a federal inmate housed at the Federal Correctional Institution Williamsburg, a facility of the federal Bureau of Prisons. He filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss. [ECF No. 14]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. Petitioner filed a timely response on June 29, 2018. [ECF No. 19].

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's motion to dismiss.

         I. Factual and Procedural Background A review of Petitioner's criminal case reflects that a jury found him guilty of two counts of possession with intent to distribute narcotics. See United States v. Simpson, No. 2:02-cr-52-RWS-SSC (N.D.Ga. Dec. 6, 2002) at ECF No. 39.[1] The court sentenced Petitioner to 240 months' and 360 months' imprisonment on the two counts. Id. at ECF No. 47. Petitioner filed an appeal challenging his convictions and sentences, and the Eleventh Circuit Court of Appeals (“Eleventh Circuit”) affirmed the judgment on October 21, 2003. Id. at ECF Nos. 48, 55. On May 24, 2004, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255 that the district court denied on January 29, 2010. Id. at ECF Nos. 64, 121. Petitioner appealed the denial of his § 2255 motion, but the Eleventh Circuit denied it on March 30, 2011. Id. at ECF Nos. 123, 140.

         Petitioner seeks immediate release on grounds that his sentence was imposed under a mandatory guideline scheme that is now unconstitutional. [ECF No. 1 at 6].[2]

         II. Discussion

         A. Standard on Motion to Dismiss

         Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         Petitioner cites to U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), arguing his sentence is an unlawful pre-Booker[3] sentence imposed under 18 U.S.C. § 3553(b). [ECF No. 1 at 7]. Petitioner claims his sentence is unconstitutional because the current guideline sentence is equivalent to a statutory term. Id. Petitioner also argues, because he only has one qualifying felony, the court improperly sentenced him as a career offender. Id.

         Respondent seeks dismissal of the petition contending Petitioner has failed to meet § 2255's saving clause in demonstrating that § 2255 is inadequate or ineffective to challenge his sentence. [ECF No. 15 at 7]. Respondent argues any claim Petitioner attempts to state under Booker fails to meet § 2255's savings clause, as Booker has not been made retroactive on collateral review. Id. at 7-8.

         In response, Petitioner alleges his claim does not rest on Booker, but on the ground that his sentence is unconstitutional as imposed under 18 U.S.C. § 3553(b). [ECF No. 19 at 1]. Petitioner argues he should be able to present a constitutional challenge to his sentence under § 2241 because the Constitution was established before any retroactive principles, and an unconstitutional sentence violates his due process rights. [ECF No. 91-1 at 1- 3]. Petitioner also contends Respondent failed to address his claim that the court unlawfully designated and sentenced him as a career offender. Id. at 4.

         “[I]t is well established that defendants 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)). In contrast, a motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. SeeIn re Vial, 115 F.3d at 1194 n.5. A petitioner cannot ...

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