United States District Court, D. South Carolina, Orangeburg Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kaymani D. West, made in
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02
Lionel James Washington (“Washington”), a pro se
federal prisoner, filed a petition seeking habeas corpus
relief pursuant to 28 U.S.C. § 2241. Magistrate Judge
West recommends dismissing Washington's petition.
Washington filed objections to the Report and Recommendation.
After review and for the reasons below, the court adopts the
magistrate judge's Report and Recommendation, dismisses
Washington's petition without prejudice, and denies
Washington's motion to amend.
Factual and Procedural History
is incarcerated at FCI-Edgefield. Washington pled guilty and
was sentenced to 188 months' imprisonment on December 12,
2009, for possession with intent to distribute crack cocaine
in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B) and 841(b)(1)(C). United States v.
Washington, No. 3:08-00612-JFA-1. Washington was
sentenced as a career offender under United States Sentencing
Guideline (“USSG”) § 4B1.1 based on two
previous convictions, a 2003 conviction for assault with
intent to kill (“AWIK”) and second degree
burglary and a 2006 conviction for distribution of cocaine
and distribution of cocaine near a school. Id., (PSR
¶¶ 35, 39.) The United States Court of Appeals for
the Fourth Circuit dismissed his appeal on March 22, 2010
without opposition from Washington. Id., (Order, ECF
No. 118-1.) Washington filed his first § 2255 motion on
December 28, 2010. Id., (Mot. Vac., ECF No. 134.)
The court denied his motion on August 24, 2011. Id.,
(Order, ECF No. 63.) Between 2011 and 2017, Washington filed
four more habeas corpus petitions pursuant to 28 U.S.C.
§ 2255, as well as several motions for reduction of
sentence, all of which were denied. (R&R 2-3, ECF No.
filed the instant § 2241 petition on May 10,
2018. (Compl., generally, ECF No. 1.) The
magistrate judge issued the Report and Recommendation on
August 13, 2018. (R&R, ECF No. 15.) After receiving an
extension, Washington filed objections to the Report and
Recommendation on September 20, 2018. (Objs., ECF No. 27.) This
matter is now ripe for review.
Discussion of the Law
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Washington has two objections.
Washington objects to the magistrate judge's
recommendation that the § 2255(e) savings clause does
not authorize the instant § 2241 petition. (Objs. 2, ECF
No. 27.) The Fourth Circuit has held that habeas relief
pursuant to § 2241 is available only if a § 2255
motion is inadequate or ineffective to test the legality of
detention. See In re Jones, 226 F.3d 328, 333 (4th
Cir. 2000) (citing 28 U.S.C. § 2255). The § 2255(e)
savings clause allows a prisoner to challenge the validity of
a conviction under § 2241 if the prisoner can
demonstrate that § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). “It is the petitioner's
burden to establish that his remedy under § 2255 is
inadequate or ineffective.” Charles v.
Chandler, 180 F.3d 753, 756 (6th Cir. 1999).
“[T]he remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because an individual has
been unable to obtain relief under that provision, or because
an individual is procedurally barred from filing a §
2255 motion.” In re Vial, 115 F.3d 1192, 1194
n.5 (4th Cir. 1997) (internal citations omitted). In
United States v. Wheeler, the Fourth Circuit adopted
a new savings clause test that allows a prisoner to challenge
the validity of his sentence under § 2241, rather than
§ 2255, if:
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018) (citing In re Jones, 226 F.3d at 333-34
argues that he can no longer be considered a career offender
because his 2003 conviction for nonviolent second degree
burglary does not qualify as a predicate offense under USSG
§ 4B1.1 in light of United States v. McLeod,
808 F.3d 972 (4th Cir. 2015). (Objs. 2, ECF No. 27.) The
magistrate judge recommends dismissing Washington's
petition because McLeod has not been found to apply
retroactively on collateral review, as required by the second
prong of the Wheeler test. (R&R 5, ECF No. 15.)
In McLeod, the Fourth Circuit held that the
petitioner's South Carolina conviction for nonviolent
second degree burglary could not serve as a predicate offense
for the career offender sentence enhancement under the Armed
Career Criminal Act (“ACCA”) because the court
was unable to determine from the record whether the
petitioner had pleaded guilty to generic burglary or
nongeneric burglary under South Carolina's burglary
statute. McLeod, 808 F.3d at 977 (noting that a
generic burglary conviction qualifies as a violent offense
under the ACCA sentencing enhancements, while nongeneric
burglary does not).
is unable to satisfy the second prong of the Wheeler
test because McLeod has not been found to apply
retroactively to collateral challenges. No. court, including
the United States Supreme Court, has addressed the
retroactivity of McLeod. Washington alleges that
McLeod should be applied retroactively because its
holding is a substantive rule that prohibits “a certain
category of punishment for a class of defendants because of
their status or offense, ” under the retroactivity
exceptions in Teague v. Lane, 489 U.S. 288 (1989).
(Objs. 3, ECF No. 27), quoting Frazer v. South
Carolina, 430 F.3d 696, 704 n.4 (4th Cir. 2005).
McLeod did not create a substantive rule that
prohibits a South Carolina conviction for nonviolent second
degree burglary from serving as a predicate offense for
sentencing enhancement under USSG § 4B1.1. Rather,
McLeod held that the petitioner's South Carolina
convictions for nonviolent second degree burglary could not
serve as predicate offenses to enhance McLeod's sentence
under the ACCA because the record was insufficient for the
court to employ the modified categorical approach to
“determine whether McLeod pleaded guilty to generic
burglary.” McLeod, 808 F.3d at 977. Moreover,
Washington was sentenced as a career offender under USSG
§ 4B1.1, not under the ACCA. Washington, No.
3:08-00612-JFA-1, (Judgment, ECF No. 98.) Accordingly,
Washington's first objection fails.
Washington objects to the magistrate judge's
recommendation that Washington's 2003 conviction for AWIK
remains valid even though the South Carolina AWIK statute
under which he was convicted was repealed in 2010 by the
Omnibus Crime Reduction and Sentencing Reform Act of 2010
(“the Act”). (Objs. 5, ECF No. 27.) Additionally,
for the first time, Washington submits that he was convicted
of the misdemeanor state offense of AWIK, rather than the
felony offense of assault and battery with intent to
kill. (Id., ECF No. 27.) As an initial
matter, the 2010 repeal of the statute did not retroactively
decriminalize AWIK. Thus, Washington's 2003 AWIK
conviction remains valid. Moreover, the South Carolina AWIK
statute was repealed when the Act was signed on June 2, 2010,
before Washington's first § 2255 motion was filed on
December 28, 2010. Act No. 273 § 66. As such, Washington
cannot bring this argument under § 2241 because he
cannot demonstrate that § 2255 is inadequate or
ineffective to test the legality of his detention under
Wheeler. Wheeler, 886 F.3d at 429
(requiring a change of settled substantive law to occur
“subsequent to the prisoner's direct appeal and
first § 2255 motion” in order to bring a
traditional § 2255 motion under § 2241).
Accordingly, Washington's second objection fails.
on the foregoing, the court finds that Washington cannot
challenge his sentence under § 2241 because § 2255
is not inadequate or ineffective to test the legality of his
detention. Based on the foregoing, Washington's petition
is dismissed. Additionally, Washington is unable to ...