United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES COLUMBIA, SOUTH CAROLINA UNITED STATES MAGISTRATE
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].
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that the
court grant Respondent's motion to dismiss.
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.
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.
seeks immediate release on grounds that his sentence was
imposed under a mandatory guideline scheme that is now
unconstitutional. [ECF No. 1 at 6].
Standard on Motion to Dismiss
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).
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).
cites to U.S. v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018), arguing his sentence is an unlawful
pre-Booker 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.
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.
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.
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 ...