United States District Court, D. South Carolina
Roderick L. Brown, #27866-068, Petitioner,
M. Travis Bragg, Warden, Respondent.
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Roderick L. Brown is an inmate in custody of the Federal
Bureau of Prisons who currently is housed at Bennettsville
FCI in Bennettsville, South Carolina. On April 27, 2018,
Petitioner filed a petition for a writ of habeas corpus under
28 U.S.C. § 2241. Petitioner contends that his
conviction and sentence violate the double jeopardy clause of
the United States Constitution. In accordance with 28 U.S.C.
§ 636(b) and Local Rule 73.02, D.S.C., this matter was
referred to United States Magistrate Judge Kevin F. McDonald
for pretrial handling.
Magistrate Judge reviewed the allegations of the § 2241
petition pursuant to Rules 1(b) and 4, Rules Governing
Section 2254 Cases. On May 29, 2018, the Magistrate Judge
issued a Report and Recommendation in which he noted that,
although Petitioner brings this action pursuant to §
2241, he must challenge his conviction and sentence pursuant
to 28 U.S.C. § 2255. See Lester v. Flournoy,
909 F.3d 708, 710 (4th Cir. 2018). The Magistrate
Judge further noted that Petitioner currently has pending a
§ 2255 motion before the sentencing court in the Western
District of North Carolina. In addition, the Magistrate Judge
determined that the “savings clause” contained in
§ 2255 does not apply because Petitioner's §
2255 motion is still pending. Finally, the Magistrate Judge
determined that Petitioner cannot contemporaneously seek
relief from his conviction and sentence by way of a §
2241 petition in this court while his § 2255 motion is
pending in the Western District of North Carolina.
Accordingly, the Magistrate Judge recommended that the §
2241 petition be summarily dismissed without prejudice and
without requiring Respondent M. Travis Bragg to respond.
filed objections to the Report and Recommendation on June 11,
2018. Petitioner does not dispute the Magistrate Judge's
conclusions; however, he asserts that this court has the
jurisdiction to vacate a void conviction and grant relief
that would render his pending § 2255 motion moot.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). This court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1). This court may
also receive further evidence or recommit the matter to the
Magistrate Judge with instructions. Id.
Magistrate Judge correctly observed, Petitioner's
exclusive remedy for collaterally attacking the imposition of
his sentence is to seek relief under § 2255, unless the
remedy is inadequate or ineffective. Swain v.
Pressley, 430 U.S. 372, 377-78 (1977). A federal
prisoner may seek a writ of habeas corpus under § 2241
when § 2255 proves inadequate or ineffective to test the
legality of detention. In re Jones, 226 F.3d 328, 333
(4th Cir. 2000). However, § 2255 is not
inadequate or ineffective merely because an individual is
unable to obtain relief under that provision. Id.
Section 2255 “is inadequate and ineffective to test the
legality of a conviction 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.” Id. at 333-34.
Petitioner has not yet received a disposition of his §
2255 motion from the sentencing court. If Petitioner does not
prevail, he can bring an action under § 2241 only if he
meets one of the three criteria set forth in In re Jones.
Petitioner's objections are without merit.
court adopts the Report and Recommendation and incorporates
it herein by reference. Petitioner's § 2241 petition
is dismissed without prejudice and without requiring
Respondent to file an answer or return.
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A prisoner
satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional
claims by the district court is debatable or wrong and that
any dispositive procedural ruling by the district court is
likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001). The court concludes that Petitioner
has not made the requisite showing.