United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
CORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
proceeding pro se, has filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his
205-months imprisonment, which was imposed in 2008 in the
Eastern District of North Carolina. (Dkt. No. 1.) Currently
before the Court is Respondent's Motion to Dismiss. (Dkt.
No. 11.) Pursuant to the provisions of 28 U.S.C.
§636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the
assigned United States Magistrate Judge is authorized to
review the petition and submit findings and recommendations
to the United States District Judge. The undersigned
recommends that Respondent's Motion to Dismiss be
2008, a federal grand jury in the Eastern District of North
Carolina indicted Petitioner for four counts: (1) conspiracy
with intent to possess and distribute more than 50 grams of
crack cocaine, in violation of 21 U.S.C. § 846; (2)
possessing with intent to distribute more than 5 grams of
crack cocaine and a quantity of methamphetamine, in violation
of 21 U.S.C. § 841(a)(1); (3) being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1); and (4) possessing with intent to distribute more
than 5 grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). See United States v. Peacock, Case
No. 5:08-cr-82-BR (E.D. N.C. ); Dkt. No. 1. Petitioner
ultimately pled guilty to Counts One and Three of the
indictment pursuant to a written plea agreement. The plea
agreement provided in part that Petitioner “knowingly
and expressly” waives “the right to appeal
whatever sentence is imposed on any ground, . . . reserving
only the right to appeal from a sentence in excess of the
advisory Guideline range that is established at sentencing,
and further to waive all rights to contest the conviction or
sentence in any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting the
Defendant's right to appeal based upon ground of
ineffective assistance of counsel and prosecutorial
misconduct not known to the Defendant at the time of the
Defendant's guilty plea.” Id. Dkt. No. 57.
December 1, 2008, the district court sentenced Petitioner.
The government had filed a § 5K1.1 motion for a downward
departure due to substantial assistance. Id. Dkt.
No. 63. The district court granted the motion and sentenced
Petitioner to a below-Guidelines sentence of 205 months
imprisonment. Specifically, Petitioner was sentenced to 205
months on the crack cocaine conspiracy count and a concurrent
120 months on the felon in possession of a firearm count.
Id. Dkt. No. 66. A career-offender enhancement was
applied to the sentence. Petitioner did not file a notice of
January 2011, Petitioner filed a § 2255 motion,
Id. Dkt. No. 69, which the district court dismissed
as untimely. Id. Dkt. No. 72. In November 2011,
Petitioner filed another § 2255 motion, asserting a
claim based on the Fourth Circuit Court of Appeals decision
in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011). Id. Dkt. No. 75. The district court dismissed
the motion on the basis that it was successive. Id.
Dkt. No. 85. On June 7, 2012, Petitioner filed a motion for
reconsideration, which the district court denied.
Id. Dkt. Nos. 87; 93. On August 16, 2012, Petitioner
filed a motion for authorization to file a successive §
2255 motion in the Fourth Circuit. See In re: Antwon
Peacock, Appeal No. 12-290 (4th Cir.); Dkt. No. 2. The
Fourth Circuit Court of Appeals denied Petitioner' motion
on August 29, 2012. Id. Dkt. No. 5.
19, 2018, Petitioner filed the instant § 2241 petition.
(Dkt. No. 1.) Petitioner attacks his sentence of 205-months
imprisonment on the basis that he was incorrectly sentenced
as a career offender under the advisory Guidelines because at
least one of his predicate state convictions that qualified
him as a career offender no longer qualifies as a predicate
offense in light of Simmons. (Dkt. Nos. 1-1 at 2; 16
September 25, 2018, Respondent filed a Motion to Dismiss.
(Dkt. No. 11.) On November 1, 2018, Petitioner filed his
response in opposition to Respondent's motion. (Dkt. No.
16.) On November 29, 2019, the Court issued a Text Order,
finding that additional information was needed before the
Court could make a recommendation as to Respondent's
motion. (Dkt. No. 17.) Specifically, the Court instructed
Respondent to produce Petitioner's Presentence
Investigation Report (“PSR”) and the guilty plea
and sentencing hearing transcripts from the underlying
action, United States v. Peacock, Case No.
5:08-cr-82-BR (E.D. N.C. ). (Id.) The Court further
instructed the parties to provide further briefing as to: (1)
the application of Wheeler's fundamental defect
standard to sentences imposed under advisory Guidelines, (2)
the distinction, if any, between a fundamental defect in the
context of a § 2255(a) motion and a § 2241
petition, (3) the application of United States v.
Foote, 784 F.3d 931 (4th Cir. 2015), to a § 2241
petition, and (4) development of the record, including the
PSR and hearing transcripts. (Id.) Respondent filed
Petitioner's PSR under seal on December 20, 2018. (Dkt.
N. 22.) Petitioner filed supplemental briefs on January 3,
2019 and January 16, 2019. (Dkt. Nos. 26; 30.) Respondent
filed a supplemental brief on February 12, 2019 and explained
that the court reporter in the underlying action could not
locate the guilty plea and sentencing hearing transcripts.
(Dkt. No. 31 at 2.) Respondent's motion has been fully
briefed and is ripe for disposition.
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 Rules Governing §
2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); and Todd v. Baskerville,
712 F.2d 70 (4th Cir. 1983).
se pleadings are given liberal construction and are held
to a less stringent standard than formal pleadings drafted by
attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007); De'Lonta v. Angelone, 330 F.3d 630, 633
(4th Cir. 2003). However, “[t]he ‘special
judicial solicitude' with which a district court should
view . . . pro se complaints does not transform the
court into an advocate.” United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert.
denied, 133 S.Ct. 2401 (2013). “Only those
questions which are squarely presented to a court may
properly be addressed.” Weller v. Dept. of Soc.
Servs. for City of Baltimore, 901 F.2d 387, 391 (4th
Cir. 1990). Giving “liberal construction” does
not mean that the Court can ignore a prisoner's clear
failure to allege facts that set forth a cognizable claim.
“Principles requiring generous construction of pro
se complaints . . . [do] not require . . . courts to
conjure up questions never squarely presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
first argues that this action should be dismissed because
Petitioner has waived the right to file his present §
2241 motion by the express terms of his plea agreement. (Dkt.
No. 31 at 5-6.) As discussed above, Petitioner entered into a
plea agreement that provided in part that Petitioner
“knowingly and expressly” waives “the right
to appeal whatever sentence is imposed on any ground, . . .
reserving only the right to appeal from a sentence in excess
of the advisory Guideline range that is established at
sentencing, and further to waive all rights to contest the
conviction or sentence in any post-conviction proceeding,
including one pursuant to 28 U.S.C. § 2255, excepting
the Defendant's right to appeal based upon ground of