United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Respondent's motion to
dismiss or, in the alternative, motion for summary judgment.
[S.C. Doc. 17.] Petitioner is a federal prisoner, proceeding
pro se, who seeks relief under 28 U.S.C. § 2241.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate
judge is authorized to review the instant habeas Petition and
submit findings and recommendations to the District Court.
filed this Petition for writ of habeas corpus on March 12,
2018. [S.C. Doc. 1.] On June 14, 2018,
Respondent filed a return and memorandum [S.C. Doc. 16] and a
motion to dismiss the Petition or, alternatively, for summary
judgment [S.C. Doc. 17]. On June 20, 2018, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised to respond to the motion and of the
possible consequences if he failed to adequately respond.
[S.C. Doc. 19.] Petitioner filed a “Memorandum of Law
in Support” of his Petition on June 27, 2018. [S.C.
Doc. 21 (signed by Petitioner on June 27, 2018).] Petitioner
also filed a response to Respondent's motion on July 25,
2018. [S.C. Docs. 23; 23-3 at 2 (envelope
stamped by correctional institution on July 25, 2018).]
Accordingly, Respondent's motion is ripe for review.
carefully considered the parties' submissions and the
record in this case, the Court recommends that
Respondent's motion be granted and Petitioner's
Petition be dismissed.
Conviction, Appeal, and Previous Collateral Attack
was indicted in 1996 for, among other offenses, one count of
conspiracy to distribute and possess with intent to
distribute crack cocaine in violation of 21 U.S.C. §
846, and three counts of using or carrying a firearm during
and in relation to a drug trafficking crime in violation of
18 U.S.C. § 924(c). [ N.C. Doc. 3.] Following a jury
trial, Petitioner was convicted of those four counts. [ N.C.
Doc. 102.] He was sentenced to life imprisonment on the
conspiracy count, and to consecutive sentences of 60, 240,
and 240 months on the three weapons offenses. [Id.]
unsuccessfully appealed his convictions and sentence,
United States v. Wilkerson, No. 97-4720, 1999 WL
104596, at *1 (4th Cir. Mar. 2, 1999), and the Supreme Court
denied certiorari, United States v. Wilkerson, 528
U.S. 927 (1999).
December 13, 2005, Petitioner filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255,
relying on the Supreme Court's then-recent decision in
United States v. Booker, 543 U.S. 220 (2005). [ N.C.
Doc. 144.] On the government's motion, the district court
dismissed the § 2255 motion as untimely, concluding that
Booker was not applicable to Petitioner's case
because his conviction became final before Booker
was issued. Wilkerson v. United States, No.
5:96-cr-167-1H, 2006 WL 8436618, at *1 (E.D. N.C. May 15,
2006). Wilkerson did not appeal.
then filed a 28 U.S.C. § 2241 petition in 2016 in the
District of South Carolina. The district court summarily
dismissed the petition, ruling that § 2255's savings
clause was not satisfied. Wilkerson v. Warden of FCI
Williamsburg, No. 8:16-2303-TMC, 2016 WL 4761618 (D.S.C.
Sept. 13, 2016).
Petitioner has filed another § 2241 Petition. [S.C. Doc.
1.] He alleges several grounds for relief. He complains
generally that his sentence is “severely harsh and
unjust, ” and that he “was severely sentenced due
to his choosing to go to jury trial.” [S.C. Doc. 1-3 at
also claims that the life sentence that he received for his
conspiracy conviction was based on the district court
judge's own factual finding that Petitioner committed a
murder as part of his relevant conduct of the offenses for
which he was being sentenced. He argues that using the murder
finding to determine his guideline range was improper for two
reasons: (1) he was never indicted for the murder by a
federal grand jury or found guilty of the murder beyond a
reasonable doubt by a federal petit jury, as he maintains
would be required by Alleyne v. United States, 570
U.S. 99 (2013), and (2) he had been found not guilty of the
murder in question in a prior trial in North Carolina state
court. [S.C. Doc. 1 at 1-10.].
further maintains that his sentence is erroneous in light of
the recently issued decision in Dean v. United
States, 137 S.Ct. 1170 (2017), wherein the Supreme Court
held that a sentencing court is free, in determining the
sentence to impose for a predicate count, to consider the
mandatory minimum sentences that the defendant will receive
for his § 924(c) offenses. [S.C. Doc. 1 at 1-6.]