United States District Court, D. South Carolina
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING PETITIONER'S PETITION WITHOUT PREJUDICE AND
WITHOUT REQUIRING RESPONDENT TO FILE AN ANSWER OR
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
case was filed as a petition for writ of habeas corpus
(petition) under 28 U.S.C. § 2241 (section 2241).
Petitioner Keon Leslie Phillips (Phillips) is proceeding pro
se. The matter is before the Court for review of the Report
and Recommendation (Report) of the United States Magistrate
Judge suggesting Phillips' petition be dismissed without
prejudice and without requiring Respondent Warden Antonelli
(Antonelli) to file an answer or return. The Report was made
in accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court 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. §
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Magistrate Judge filed the Report on February 20, 2019, ECF
No. 8, and the Clerk of Court entered Phillips'
objections to the Report on March 1, 2019, ECF No. 11. The
Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
Magistrate Judge recommends Phillips fails to meet the
requirements of United States v. Wheeler, 886 F.3d
415, 428-29 (4th Cir. 2018), to seek relief under section
2241 via 28 U.S.C. § 2255's (section 2255) savings
clause. The Magistrate Judge notes Phillips was convicted of
the underlying crime in Georgia, which is part of the
Eleventh Circuit, and Phillips fails to show the law of
either the Eleventh Circuit or the United States Supreme
Court has changed so as to meet the Wheeler
requirements. The Magistrate Judge thus suggests
Phillips' petition is due to be dismissed.
first objects the Magistrate Judge incorrectly required a
change in Supreme Court law for Phillips to meet the
Wheeler requirements. Phillips, however, has
misunderstood the Magistrate Judge. In her thorough analysis,
the Magistrate Judge correctly noted that a change in the
either the Eleventh Circuit law or Supreme Court law under
which Phillips was sentenced would enable Phillips to meet
the second element of the Wheeler test. Accordingly,
the Court will overrule Phillips' first objection to the
next avers the Magistrate Judge improperly analyzed whether
he could seek relief under section 2241. Having read and
considered the Report, the objections, and the applicable
law, the Court disagrees with Phillips.
challenges the validity of his sentence. “[I]t is well
established that defendants convicted in federal court [like
Phillips] are obliged to seek habeas relief from their
convictions and sentences through § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Section 2241, by contrast, can be used to attack the
execution of a sentence. In re. Vial, 115 F.3d 1192,
1194 n.5 (4th Cir. 1997). Thus, the proper method for
Phillips to challenge the validity of his sentence is a
motion under section 2255, rather than one under section
section 2255 motion is generally the sole method for a
petitioner convicted in federal court to challenge the
validity of his sentence. Rice, 617 F.3d at 807. A
petitioner may, however, seek relief under section 2241 via
section 2255's savings clause when section 2255
“proves ‘inadequate or ineffective to test the
legality of . . . detention.'” Vial, 115
F.3d at 1194 (quoting 28 U.S.C. § 2255(e)).
“However, 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 . . . .”
Vial, 115 F.3d at 1194 n.5 (citations omitted).
Wheeler, the Fourth Circuit established a test for
meeting section 2255's savings clause in challenging a
sentence. 886 F.3d 415. To meet the Wheeler test, a
petitioner must show: 1) the sentence was legal under settled
law at the time of sentencing; 2) after petitioner's
direct appeal and first motion under section 2255, the
substantive law changed, and the new law was made retroactive
on collateral review; 3) petitioner is unable to meet the
requirements of 28 U.S.C. § 2255(h)(2) to file a
successive motion under section 2255; and 4) the sentence
imposed presents a fundamental defect due to the change in
the law. Id. at 428-29. As the Magistrate Judge
correctly notes, Phillips fails to show the law of the
Eleventh Circuit or the United States Supreme Court has
changed since his direct appeal and first petition under
section 2255. He thus fails to meet Wheeler's
second requirement, and is unable to seek relief under
section 2241. Accordingly, the Court will overrule
Phillips' second objection to the Report.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Phillips' objections, adopts the Report, and incorporates
it herein. Therefore, it is the judgment of this Court
Phillips' petition is DISMISSED WITHOUT
PREJUDICE and without requiring Antonelli to file an
answer or return.
extent Phillips requests a certificate of appealability from
this Court, that certificate is DENIED.