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. [Doc. 9.] 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 May 18,
2018. [Doc. 1.] On July 19, 2018, Respondent
filed a motion to dismiss the Petition. [Doc. 9]. The next
day, 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. [Doc. 10.] Petitioner filed a response in
opposition to the motion to dismiss on August 20, 2018. [Doc.
12.] This matter is now ripe for review.
carefully considered the parties' submissions and the
record in this case, the Court recommends that
Respondent's motion to dismiss be granted.
Conviction, Appeal, and Previous Collateral Attack
to a guilty plea, Petitioner was sentenced in the United
States District Court for the Eastern District of North
Carolina on July 29, 2008 to 320 months' imprisonment for
violation of 21 U.S.C. § 841(a)(1)-intent to distribute
more than five grams of cocaine base-and violation of 18
U.S.C. § 924(c)(1)(A)-possession of a firearm in
furtherance of a drug trafficking crime. [E.D. N.C. No.
5:07-cr-00351-BO-1, Doc. 31]. Specifically, Petitioner was
sentenced to consecutive sentences of 260 months'
imprisonment for his conviction for possession with intent to
distribute more than five grams of cocaine and sixty
months' imprisonment for possession of a firearm in
furtherance of a drug trafficking crime. [Id.]
Petitioner did not file a direct appeal. On February 9, 2012,
Petitioner filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. [Id.,
Doc. 33.] The motion was dismissed as untimely.
[Id., Doc. 46.] Subsequently, the Fourth Circuit
Court of Appeals affirmed the dismissal of Petitioner's
§ 2255 motion. United States v. Barnes, 509
Fed.Appx. 279 (4th Cir. 2013) (unpublished decision).
16, 2015, Petitioner filed a § 2241 Petition in this
Court. [D.S.C. No. 8:15-cv-02842-HMH-JDA, Doc. 1.] Petitioner
challenged a career offender sentence enhancement imposed
under § 4B1.1 of the United States Sentencing Guidelines
and alleged that one of his prior convictions used to enhance
his sentence no longer qualifies as a predicate offense in
light of United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc). [D.S.C. No. 8:15-cv-02842-HMH-JDA, Doc.
1 at 6-10.] The Court dismissed the § 2241 Petition on
the basis that Petitioner failed to establish the
requirements of § 2255's savings clause because
“the savings clause does not apply to petitioners
challenging only their sentence.” Barnes v.
Bragg, 8:15-cv-02842-HMH-JDA, 2016 WL 4087360, at *4
(D.S.C. July 12, 2016), Report and Recommendation Adopted by
2016 WL 4040295 (July 28, 2016), affirmed by Barnes v.
Bragg, 696 Fed.Appx. 629 (4th Cir. 2017).
Petitioner's current § 2241 Petition, filed May 18,
2018, Petitioner again contends that he was incorrectly
sentenced as a career offender under the advisory guidelines
because at least some of his predicate state convictions that
qualified him as a career offender no longer qualify as
predicate offenses in light of Simmons. [Doc. 1.]
Construction of Pro Se Petition Petitioner brought this
action pro se, which requires the Court to liberally construe
his pleadings. Estelle v. Gamble, 429 U.S.97, 106
(1976); Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam); Loe v. Armistead, 582 F.2d 1291, 1295
(4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). Pro se pleadings are held to a less
stringent standard than those drafted by attorneys.
Haines, 404 U.S. at 520. Even under this less
stringent standard, however, the pro se petition is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means only that if the court
can reasonably read the pleadings to state a valid claim on
which the petitioner could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the petitioner's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
claim should be dismissed if it fails to state a claim upon
which relief can be granted. When considering a motion to
dismiss, the court should “accept as true all
well-pleaded allegations and should view the [petition] in a
light most favorable to the [petitioner].” Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). However, the court “need not accept the legal
conclusions drawn from the facts” nor “accept as
true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
Further, for purposes of a Rule 12(b)(6) motion, a court may
only rely on the allegations in the petition and those
documents attached as exhibits or incorporated by reference.
See Simons v. Montgomery Cnty. Police Officers, 762
F.2d 30, 31 (4th Cir. 1985).
respect to well-pleaded allegations, the United States
Supreme Court explained the interplay between Rule 8(a) and