United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, Clinton Burns, (“Petitioner”),
appearing pro se, filed this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 on April 11,
2018.The Respondent filed a motion to dismiss
or, in the alternative, a motion for summary judgment along
with a return containing supporting memorandum and exhibits.
(ECF No. 27). The undersigned issued an order filed July 12,
2018, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir.1975), advising the Petitioner of the motion and the
possible consequences if he failed to respond adequately.
(ECF No. 29). Petitioner filed a response on July 23, 2018.
is currently incarcerated at the Federal Correctional
Institution Estill in South Carolina. Petitioner is seeking
relief pursuant to 28 U.S.C. § 2241. Petitioner was
convicted and sentenced in the Southern District of Florida
in June 1995 for possession with intent to distribute cocaine
base under 21 U.S.C. § 841(a)(1)(262 months to run
concurrently) and conspiracy with intent to distribute
cocaine base, under 21 U.S.C. § 846(life). Sentence
enhancements were sought under 21 U.S.C. § 841 and
§ 851. (Attribution was 61.4 grams of cocaine base.
(95-cr-6031-MGC, S.D. Fl., ECF No. 413)). Petitioner was
sentenced to life. The Eleventh Circuit affirmed in November
1997; the United States Supreme Court denied direct appellate
review. Petitioner filed a § 2255 motion in October
1998, which was denied in November 1999 and the Eleventh
Circuit denied a certificate of appealability.
asserts he meets the four part test announced in
Wheeler. Petitioner seeks relief from his allegedly
illegal sentence and requests to be resentenced without the
use of non-qualifying state convictions. Petitioner asserts
the governments' § 851 Notice of enhancement listed:
1- possession of marijuana(85-)
2- possession of cocaine (Petitioner argues the charge was
actually tampering with evidence a non-predicate under §
3- delivery of cocaine (Petitioner argues his record has no
such conviction) (91-)
4- delivery within 1000 feet of school (Petitioner argues
this was a co- defendant's conviction and not his
5-possession of cocaine and marijuana (Petitioner argues was
not punishable by more than 1 year) (92-)
(ECF No. 1).
argues his sentence should not have been increased due to the
misinformation regarding his prior record. Petitioner argues
without the use of convictions in 1991 and 1992, his
mandatory minimum would be 262 months. Petitioner contends
his sentence was issued based on an erroneous mandatory
minimum. Plaintiff cites to Wheeler and
Simmons cases as support.
attached the government's Notice of Sentencing
Enhancements from the 1995 convictions. It states that under
21 U.S.C. § 841 and § 851 and 18 U.S.C. §
3559(c) each of the following offenses qualifies as a
predicate offense for statutory enhancement for life: (same
five convictions as Petitioner cited, as listed above. ECF
No. 1-2 at 2-3). Other attachments show the 90- case number,
the second listed conviction for enhancement above, is a
count of tampering with physical evidence with probation,
then revocation, then 2.5 year sentence. (However, the facts
surrounding the conviction and used at sentencing are that he
swallowed cocaine). Plaintiff's sentence was enhanced to
life under 21 U.S.C. § 851(a)(1) on count 1 for the 1995
conviction. ECF No. 1-2 at 12.
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 ...