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Hardy v. Antonelli

United States District Court, D. South Carolina

January 3, 2019

Phillip Hardy, #58376-056, Petitioner,
Warden Antonelli, Respondent.


          Bruce H. Hendricks, United States District Judge

         This matter is before the Court upon Petitioner Phillip Hardy's (“Petitioner”) pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. 636(b)(1)(B) and Local Rule 73.02(B)(2)(c) (D.S.C.), the matter was referred to a United States Magistrate Judge for initial review. On April 26, 2018, Magistrate Judge Jacqueline D. Austin issued a report and recommendation (“Report”), analyzing the issues and recommending that the Court dismiss the petition without prejudice and without requiring Respondent to file a return. (ECF No. 18.) Petitioner filed objections (ECF No. 21) to the Report, and the matter is ripe for review.


         Petitioner filed a pro se petition for a writ of habeas corpus pursuant to § 2241 on January 16, 2018. (ECF No. 1.) In the petition, he asserts that he is actually innocent of one of two underlying offenses of conviction, to which he pled guilty-namely, possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (Id. at 5-9.) Petitioner acknowledges that he has previously filed a motion to vacate pursuant to 28 U.S.C. § 2255 in the Eastern District of North Carolina, where he was convicted, which motion was denied. (See Id. at 4-5.)

         Petitioner does not allege any new evidence to support his actual innocence claim. However, he asserts that In re Jones, 226 F.3d 328 (4th Cir. 2000) and Bailey v. United States, 516 U.S. 137 (1995), render invalid his conviction for “use of a firearm during a drug offense.” (Id. at 5-7.)


         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination only of those portions of the Report to which a specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendations of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'”) (quoting Fed.R.Civ.P. 72 advisory committee's note).


         In her Report, Magistrate Judge Austin explains that the § 2241 petition is subject to summary dismissal because Petitioner is erroneously attempting to overturn his § 924(c) conviction by filing a § 2241 action, rather than by motion pursuant to § 2255. The Magistrate Judge rightly notes that § 2241 actions are generally used to challenge the execution or implementation of a federal prisoner's sentence, and not to collaterally attack a conviction or sentence. (See ECF No. 18 at 4-5.)

         “[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc)). However, § 2255 contains a “savings clause” that allows federal prisoners to proceed under § 2241 when a motion under § 2255 would prove “inadequate or ineffective” to test the legality of the detention.[1] In re Vial, 115 F.3d at 1194. Importantly, “the 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 . . . .” Id. at n.5.

         The Fourth Circuit has identified circumstances when a federal prisoner may use a § 2241 petition to attack the legality of a conviction. Specifically, § 2255 is inadequate or ineffective when:

(1) at the time of the 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.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Here, Magistrate Judge Austin determined that Petitioner failed to meet the elements set forth in In re Jones because he failed to show that the conduct of which he was convicted has been deemed non-criminal by any change in substantive law. (ECF No. 18 at 6-7.) Moreover, the Magistrate Judge rejected Petitioner's claim that In re Jones and Bailey render his § 924(c) conviction invalid, noting that the prisoners in those cases relied on changes in the law following their relevant convictions and sentence judgments, whereas Petitioner has pointed to no such change in the law and the savings clause therefore does not apply. (Id. at 7.)

         Likewise, Magistrate Judge Austin rejected Petitioner's claim of actual innocence, observing that it is facially inadequate to require consideration because Petitioner does not allege that there is any new, reliable evidence of any type that was not presented in any of his prior court proceedings which supports his innocence of the criminal firearm charge to which he pled guilty, and of which he was convicted. (ECF No. 18 at 7-9.) As the Magistrate Judge noted, claims of actual innocence are extremely rare and must be based on factual innocence and not simply legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Because Petitioner failed to present any new, ...

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