United States District Court, D. South Carolina, Orangeburg Division
Jotham R. Simmons, Petitioner,
Warden Antonelli, Respondent.
Bryan Harwell United States District Judge.
Jotham R. Simmons, a federal prisoner proceeding pro se, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. See ECF No. 1. The matter is
before the Court for consideration of Petitioner's
objections to the Report and Recommendation (“R &
R”) of United States Magistrate Judge Kaymani D. West,
who recommends summarily dismissing Petitioner's §
2241 petition. See ECF Nos. 14 & 18.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
2013, Petitioner pleaded guilty in this Court to (1) being a
felon in possession of firearms and ammunition, in violation
of 18 U.S.C. § 922(g)(1), and (2) possessing a
short-barreled shotgun in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(B)(i).
See United States v. Simmons, No.
4:12-cr-00910-RBH-1 (D.S.C.). Petitioner has now filed a
§ 2241 petition challenging his § 922(g)
conviction. See ECF No. 1.
Magistrate Judge recommends summarily dismissing
Petitioner's § 2241 petition because he fails to
satisfy the savings clause in 28 U.S.C. § 2255(e) and
therefore fails to establish that a motion under 28 U.S.C.
§ 2255 is inadequate or ineffective to test the legality
of his detention. R & R at pp. 4-8. In his objections,
Petitioner claims he should be able to pursue § 2241
relief because he is “actually innocent” of his
conviction under 18 U.S.C. § 922(g). See ECF
No. 18 at pp. 2-7. However,
it is well established that defendants convicted in federal
court are obliged to seek habeas relief from their
convictions and sentences through § 2255. It is only
when § 2255 proves inadequate or ineffective to test the
legality of detention, that a federal prisoner may pursue
habeas relief under § 2241. Importantly, the remedy
afforded by § 2255 is not rendered inadequate or
ineffective merely because an individual is procedurally
barred from filing a § 2255 motion.
. . . . More specifically, § 2255 is inadequate and
ineffective-and § 2241 may be utilized-when: (1) at the
time of conviction, settled law of this circuit or the
Supreme Court established the legality of the conviction; (2)
subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010);
see also United States v. Wheeler, 886 F.3d 415, 427
(4th Cir. 2018) (reciting this three-factor test originally
articulated in In re Jones, 226 F.3d 328 (4th
Cir.2000)). Here, Petitioner cannot show § 2255 is
inadequate or ineffective because the substantive law has not
changed so that his conduct-being a felon in possession of
firearms and ammunition, in violation of 18 U.S.C. §
922(g)-is no longer criminal.
as the Magistrate Judge explains, “‘actual
innocence' means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998); see also United States v.
Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (reciting
the actual innocence standard). An actual innocence
“claim requires [the] petitioner to support his
allegations of constitutional error with
evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence . . . . Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual
innocence are rarely successful.” Schlup v.
Delo, 513 U.S. 298, 324 (1995) (emphasis added); see
Pettiford, 612 F.3d at 282 (“[T]he movant must
show actual innocence by clear and convincing
evidence.” (internal quotation marks omitted)). Here,
while Petitioner makes allegations of actual innocence, he
does not present “new reliable evidence” to
support such a claim.
foregoing reasons, Petitioner is not entitled to relief under
28 U.S.C. § 2241, and the Court must dismiss his §