United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 11) recommending
the Court dismiss Petitioner's Petition for a Writ of
Habeas Corpus ("Petition"). For the reasons set
forth below, the Court adopts the R & R as the order of
the Court as amended, and the Petition is dismissed.
October 15, 2018, Petitioner John Irving Wheeler filed a
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (Dkt. No. 1.) Petitioner's Petition
seeks to challenge his conviction and sentence, arguing that
the Federal Bureau of Prisons ("BOP") lacks
jurisdiction to detain him, and that his conviction is void
for vagueness. (Dkt. No. 1 at 5, 8.) The Magistrate Judge
issued an R & R recommending dismissal of the Petition.
(Dkt. No. 11.) Petitioner filed objections. (Dkt. No. 17.)
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The 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 must make
a de novo determination of those portions of the R
& R Petitioner specifically objects to. Fed.R.Civ.P.
72(b)(2). Where Petitioner fails to file any specific
objections, "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." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S.C. Dept of Corr.,
No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12,
2015). See also Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983)). Petitioner filed objections in this case,
and the R & R is reviewed de novo.
Magistrate Judge correctly held, a petitioner cannot
challenge his federal conviction and sentence through §
2241, unless he can meet the "savings clause" of
§ 2255 by showing that a motion is "inadequate or
ineffective to test the legality of his detention."
See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.
2010). The Fourth Circuit, in United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018), articulated a
four part test for the § 2255 "savings
clause." The test requires, in part, that the
"substantive law changed and was deemed to apply
retroactively" after a petitioner's appeal and
§ 2255 motion. Id. at 429. Petitioner does not
attempt to meet this test here, and instead challenges his
federal conviction and sentence by arguing that his
conviction is void for vagueness and that the BOP lacks
jurisdiction to detain him. (Dkt. No. 1.) Petitioner's
objections do not address any of these issues, and again
contends that that the BOP lacks jurisdiction to detain him.
(Dkt. No. 17.) Petitioner fails to identify any alleged
change in law. Therefore, as the Magistrate Judge correctly
held, Petitioner cannot challenge his conviction and sentence
through his § 2241 Petition, and he cannot meet the
savings clause of § 2255. Therefore, his Petition is
foregoing reasons, the R & R of the Magistrate Judge
(Dkt. No. 11) is ADOPTED as the order of the
Court, as amended,  and Petitioner's Petition (Dkt. No. 1)
is DISMISSED WITHOUT PREJUDICE.
governing law provides that:
(c)(2) A certificate of appealability may issue . .. only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing ...