United States District Court, D. South Carolina, Orangeburg Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kaymani D. West, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Marcellus James
Fennell, Jr. (“Fennell”), a pro se federal
prisoner, seeks habeas corpus relief pursuant to 28 U.S.C.
§ 2241. In her Report and Recommendation, Magistrate
Judge West recommends granting Respondent's motion to
dismiss and dismissing Fennell's petition. After review
and for the reasons below, the court adopts the magistrate
judge's Report and Recommendation, grants
Respondent's motion to dismiss, and dismisses
Fennell's petition without prejudice.
Factual and Procedural History
is currently incarcerated at FCI-Estill. On December 16,
2008, Fennell pled guilty to one count of conspiracy to
possess with intent to distribute more than fifty grams of
cocaine base, in violation of 21 U.S.C. § 846, in the
United States District Court for the Eastern District of
North Carolina. United States v. Fennell, C.A. No.
7:08-cr-77-D-1 (E.D. N.C. ).Fennell's sentencing range,
under the United States Sentencing Guidelines
(“USSG”), was 360 months to life imprisonment,
which included a career offender enhancement based on two
prior state drug convictions. Id. (Sentencing Tr.
38, ECF No. 45.) On May 6, 2009, Fennell received a downward
departure pursuant to USSG § 5K1.1 and was sentenced to
300-months' imprisonment. Id. (Sentencing Tr.
58, ECF No. 45.) Fennell appealed his sentence. The United
States Court of Appeals for the Fourth Circuit dismissed
Fennell's appeal on November 3, 2009. United States
v. Fennell, No. 09-4457 (4th Cir. Nov. 3, 2009)
(unpublished). On June 20, 2012, Fennell filed a motion to
vacate, set aside, or correct the sentence pursuant to 28
U.S.C. § 2255. (§ 2241 Pet. Attach. 1 (Mem. Supp.
§ 2241 Pet. 3), ECF No. 1-1.) The Eastern District of
North Carolina dismissed the § 2255 motion on May 6,
2013. (Id. Attach. 1 (Mem. Supp. § 2241 Pet.
3), ECF No. 1-1.)
filed the instant § 2241 petition on June 21, 2018,
arguing that, in light of United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc), one of his prior
convictions no longer qualifies as a predicate offense under
the career offender sentencing enhancement. (Id.,
ECF No. 1.) Respondent filed a motion to dismiss on September
24, 2018. (Mot. Dismiss, ECF No. 18.) Fennell filed a
response in opposition on October 26, 2018. (Resp. Opp'n
Mot. Dismiss, ECF No. 21.) Magistrate Judge West filed the
Report and Recommendation on February 21, 2019, and
recommends granting Respondent's motion and dismissing
Fennell's petition because (1) Fennell's petition is
barred by a valid appeal waiver, and (2) Fennell cannot
satisfy the savings clause test under 28 U.S.C. §
2255(e), pursuant to United States v. Wheeler, 886
F.3d 415 (4th Cir. 2018), in order to proceed under §
2241. (R&R, generally, ECF No. 26.) Fennell filed
objections to the Report and Recommendation on March 7,
2019. (Objs., generally, ECF No. 28.) This
matter is now ripe for review.
Discussion of the Law
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of Fennell's objections
are non-specific, unrelated to the dispositive portions of
the Report and Recommendation, or merely restate his claims.
Further, Fennell did not specifically object to the
magistrate judge's conclusion that his § 2241
petition is barred by the valid appeal waiver in his plea
agreement. However, the court was able to glean one specific
objection. Fennell objects to the magistrate judge's
conclusion that his sentence does not “present an error
sufficiently grave to be deemed a fundamental defect, ”
under the Wheeler savings clause test. (Objs.,
generally, ECF No. 28.)
attacks challenging the legality of a conviction or sentence
are properly brought under § 2255, while collateral
attacks challenging the execution of a sentence are properly
brought under § 2241. In re Vial, 115 F.3d
1192, 1194 & n.5 (4th Cir. 1997). However, a federal
prisoner may challenge the legality of his sentence under
§ 2241, rather than § 2255, if the prisoner can
demonstrate that § 2255 is inadequate or ineffective to
test the legality of the sentence. See In re Jones,
226 F.3d 328, 333 (4th Cir. 2000) (citing 28 U.S.C. §
2255); Wheeler, 886 F.3d at 428. In
Wheeler, the Fourth Circuit adopted a new savings
clause test that allows a prisoner to challenge the legality
of his sentence under § 2241, rather than § 2255,
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
Wheeler, 886 F.3d at 429 (citing In re
Jones, 226 F.3d at 333-34 & n.3).
alleges that one of his predicate offenses for the career
offender enhancement no longer qualifies pursuant to
Simmons because the maximum possible sentence he
could have received for the prior state conviction was nine
months. (§ 2241 Pet. Attach. 1 (Mem. Supp. § 2241
Pet. 9), ECF No. 1-1.) In Simmons, the Fourth
Circuit modified the method by which a North Carolina
conviction is classified as a felony offense for purposes of
federal sentencing enhancements, and requires sentencing
courts to examine whether the particular defendant's
maximum possible sentence for the predicate conviction
exceeded one year. Simmons, 649 F.3d at 248.
United States v. Foote, the Fourth Circuit held that
a valid career offender enhancement imposed after United
States v. Booker, 543 U.S. 220 (2005), which is later
undermined by Simmons, does not present a
fundamental defect resulting in a complete miscarriage of
justice under § 2255. 784 F.3d 931, 940-44 (4th Cir.
2015). The Supreme Court of the United States held in
Booker that the USSG were no longer mandatory, but
were to be considered advisory only. Booker, 543
U.S. at 245. Key to the court's analysis in
Foote was that when the petitioner was sentenced,
the USSG were advisory and required an individualized
analysis of the sentencing factors set forth in 18 U.S.C.
§ 3553(a) before a sentence could be imposed.
Id. at 941.
Wheeler, the Fourth Circuit found that an increase
to a mandatory minimum sentence under pre-Booker
mandatory guidelines that is later invalidated by a
subsequent change in law, presented a sufficiently grave
fundamental error to allow the petitioner to satisfy the
savings clause test and have his petition heard on the
merits. Wheeler, 886 F.3d at 430. Recently, the
Fourth Circuit and district courts therein have found that no
fundamental defect exists under Wheeler for errors
in originally valid sentences imposed pursuant to
post-Booker advisory guidelines. See Lester v.
Flournoy, 909 F.3d 708, 715 (4th Cir. 2018) (rejecting
the government's argument that Foote barred a
§ 2241 petition that challenged a prisoner's career
offender enhancement who had been sentenced prior to
Booker and noting that “Foote
undoubtedly would bar [the petitioner's] petition had he
been sentenced under the advisory Guidelines.”);
Kornegay v. Warden, FCI Butner, No. 13-7565, 2019 WL
258720, at *1 (4th Cir. Jan. 17, 2019) (per curiam)
(unpublished) (affirming district court's order denying
§ 2241 relief because petitioner “was sentenced
under the advisory Guidelines and Foote bars his
petition.”); Lee v. Andrews, No.
5:18-HC-2031-FL, 2018 WL 4924008, at *2 (E.D. N.C. Oct. 10,
2018) (holding that a career offender enhancement imposed
under post-Booker advisory USSG that is later
invalidated by a subsequent change in ...