United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
se Petitioner, Cedric Reynolds, an inmate at FCI-Estill,
brings this application for writ of habeas corpus (Petition)
pursuant to 28 U.S.C. § 2241. Under established local
procedure in this judicial district, a careful review has
been made of the pro se petition filed in this case pursuant
to the procedural provisions of the Rules Governing Section
2254 Proceedings in the United States District Court,
U.S.C. § 2254; the Anti-Terrorism and Effective Death
Penalty Act (AEDPA) of 1996; and in light of the following
precedents: Denton v. Hernandez. 504 U.S. 25 (1992);
Neitzke v. Williams. 490 U.S. 319, 324-25 (1989);
Haines v. Kerner. 404 U.S. 519 (1972); Nasim v.
Warden. Md. House of Corr.. 64 F.3d 951 (4th Cir. 1995);
and Todd v. Baskerville. 712 F.2d 70 (4th Cir.
petitions are held to a less stringent standard than those
drafted by attorneys, and a court is charged with liberally
construing a petition filed by a pro se litigant to allow for
the development of a potentially meritorious case. See
Erickson v. Pardus. 551 U.S. 89 (2007); Hughes v.
Rowe. 449 U.S. 5, 9 (1980); Fine v. City of New
York. 529 F.2d 70, 74 (2d Cir. 1975). However, even when
considered under this less stringent standard, for the
reasons set forth hereinbelow the petition submitted in the
instant case is subject to summary dismissal. The requirement
of liberal construction does not mean that this Court can
ignore a clear failure in the pleading to allege facts which
set forth a claim currently cognizable in a federal district
court. See Weller v. Dep't of Soc. Servs.. 901
F.2d 387 (4th Cir. 1990). Such is the case here.
pleading guilty in 2013 in the United States District Court
for the Southern District of Georgia to possession of a
firearm by an armed career criminal, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1), Petitioner
received an enhanced sentence under the Armed Career Criminal
Act (ACCA) because he had a prior Georgia conviction for
possession of a controlled substance with intent to
distribute, a juvenile adjudication for making terroristic
threats, and a juvenile adjudication for aggravated assault.
No. direct appeal was filed. See Reynolds v. United
States, No. 17-10092-G, 2017 WL 6888009 (11th Cir. Dec.
2014, Petitioner filed his first motion to vacate pursuant to
28 U.S.C. § 2255, claiming ineffective assistance of
counsel for (1) his attorney's failure to object to this
ACCA sentencing enhancement on the ground it was not charged
in the indictment and (2) to the use of his previous juvenile
adjudications as qualifying ACCA predicate offenses. The
district court denied the § 2255 motion on the merits,
concluding that both of Petitioner's juvenile
adjudications qualified as ACCA violent-felony predicate
offenses under the ACCA's elements clause and denied a
certificate of appealability (COA). Petitioner moved the
Eleventh Circuit Court of Appeals for a COA, arguing for the
first time that he was entitled to relief on his second claim
under Johnson v. United States. 135 S.Ct. 2551
(2015)[declaring the residual clause in ACCA, 18 U.S.C.
§ 924(e), unconstitutionally vague], based on the
vagueness of the state's record that was used to enhance
his sentence. The CO A was denied with the Eleventh Circuit
concluding that Petitioner's reliance on Johnson was
misplaced because Johnson concerned only the residual clause
of the ACCA and did not affect the ACCA's elements
clause, which is the clause that applied to Petitioner's
juvenile offenses. See Reynolds v. United States.
2017 WL 6888009, at *1.
filed a second § 2255 motion in the Southern District of
Georgia (after receiving leave from the Eleventh Circuit to
do so in July 2016), contending that his ACCA-enhanced
sentence was illegal in light of Johnson, specifically
arguing that his Georgia aggravated-assault and
terroristic-threats adjudications no longer qualified as ACCA
violent-felony predicate offenses such that he no longer had
at least three qualifying offenses supporting his
ACCA-enhanced sentence. He also claimed that his
ACCA-sentence was illegal in light of Descamps v. United
States, 570 U.S. 254 (2013). A magistrate judge
recommended that the second § 2255 motion be dismissed
for Petitioner's failure to meet § 2255(h)(2)'s
requirement that the raised claim be previously unavailable
to him because he previously presented his Johnson-based
claim in his COA motion to the Eleventh Circuit as to his
initial § 2255 motion (the Descamps claims were not
addressed). See Reynolds v. United States. Nos.
CV416-194, CR412-239, 2016 WL 5030375 (S.D.Ga. Sept. 19,
2016). The Southern District of Georgia adopted
the report and recommendation and dismissed the second §
2255 motion for lack of jurisdiction. Reynolds v. United
States. Nos. CV416-194, CR412-239, 2016 WL 7493970
(S.D.Ga. Dec. 30, 2016). The Eleventh Circuit denied a COA
finding that they had already denied Petitioner a COA on his
claim that his prior juvenile convictions no longer
constituted ACCA violent-felony predicates post-Johnson and
that he failed to show that any exceptions
applied. Id. at *3.
present Petition, Petitioner again asserts that he is
challenging the use of a sentence enhancement under the Armed
Career Criminal Act (ACCA) and asks to be resentenced without
reference to the ACCA to a sentence not exceeding the
ten-year statutory maximum. Petition, ECF No. 1 at 8-9. His
ground for relief is that his sentence was improperly
enhanced under the ACCA based on three prior offenses, one of
which, the Georgia terroristic threat, should no longer be
considered violent for ACCA purposes. Id. at 8.
Petitioner argues that he has demonstrated that he is
entitled to relief under United States v. Wheeler,
886 F.3d 415 (4th Cir. 2018) because the government conceded
in Stewart v. United States. 2017 WL 1407641
(M.D.Ga. Apr. 19, 2017) that Georgia terroristic threats no
longer qualify as ACCA predicates. Petitioner's
Memorandum, ECF No. 1-1 at 4.
action is subject to summary dismissal because generally
"it is well established that defendants convicted in
federal court are obliged to seek habeas relief from their
convictions and sentences through § 2255," not
through a petition filed pursuant to § 2241. Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing
InreViai 115 F.3d 1192, 1194 (4th Cir. 1997)). However, a
federal prisoner may file a § 2241 petition challenging
his conviction if § 2255 is "inadequate or
ineffective to test the legality of [his] detention." In
re Jones. 226 F.3d 328, 333 (4th Cir. 2000) (internal
quotation marks omitted); see 28 U.S.C. § 2255(e). Here,
Petitioner challenges only his sentence. Recently, in
Wheeler, the Fourth Circuit held that § 2255 is
inadequate or ineffective to test the legality of a sentence
(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
gate keeping 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 at 429)(citing In
re Jones. 226 F.3d at 333-34).
fails to meet the above test as he cannot establish that,
subsequent to his first § 2255 motion, the "settled
substantive law [that established the legality of his
sentence] changed and was deemed to apply retroactively on
collateral review," as required by the second prong.
Wheeler. 886 F.3d at 429. Petitioner argues that
Johnson, made retroactive by Welch v. United States.
136 S.Ct. 1257, 1268 (2016), changed settled substantive law.
However, as found by the Eleventh Circuit, Petitioner's
sentence was enhanced under the elements clause of the ACC A,
not the residual clause and Johnson applies only to
defendants sentenced under the ACCA's residual clause.
report and recommendation as to Petitioner's first §
2255 motion, which was adopted by the district judge, the
magistrate judge specifically noted:
Reynolds was ACCA-enhanced based on two juvenile
adjudications. The first, which occurred in 2002, was for
terroristic threats - - Reynolds pointed a pistol at a victim
and threatened a crime of violence against him. (Cr. Doc.
50-1 at 3). The second occurred in 2005. Reynolds was
adjudicated guilty of ...