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Barnes v. Bragg

United States District Court, D. South Carolina

October 3, 2018

Chester Lee Barnes, Jr., Petitioner,
v.
M. Travis Bragg, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge.

         This 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.

         Petitioner filed this Petition for writ of habeas corpus on May 18, 2018.[1] [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.

         Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion to dismiss be granted.

         BACKGROUND

         Underlying Conviction, Appeal, and Previous Collateral Attack

         Subsequent 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].[2] 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).

         On July 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).

         In 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.]

         APPLICABLE LAW

         Liberal 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).

         Motion to Dismiss Standard

         Under 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).

         With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and ...


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