United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
petitioner, Alden Bernard Lewis, a self-represented inmate at
the Federal Correctional Complex in Coleman, Florida,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. The Petition is filed in forma
pauperis pursuant to 28 U.S.C. § 1915 and §
1915A. This matter is before the court pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.).
Having reviewed the Petition in accordance with applicable
law, the court concludes that it should be summarily
Factual and Procedural Background
a federal prisoner, indicates he was convicted in the United
States District Court for the Middle District of Florida of
Hobbs Act robbery and sentenced in 2012 under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(c). (Pet., ECF No. 1 at 1; ECF No. 1-1 at 2.) That
section of the ACCA provides for penalties where the
defendant uses, carries, or possesses a firearm in the
furtherance of a crime of violence. Petitioner argues that
his sentence under that provision has now been rendered
unlawful because the United States Courts of Appeal for the
Fourth and Fifth Circuits recently found that the definition
of “crime of violence” in § 924(c)(3)(B) is
unconstitutionally vague. See United States v.
Simms, 914 F.3d 229 (4th Cir. 2019); United States
v. Davis, 903 F.3d 483 (5th Cir. 2018), cert.
granted 139 S.Ct. 782 (Jan. 4 2019). (Id. at 5;
ECF No. 1-1 at 2-4.) Petitioner asks the court to vacate his
conviction and sentence. (Id. at 8; ECF No. 1-1 at
Standard of Review
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);
Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
court is required to liberally construe pro se
complaints, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825
F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement
of liberal construction does not mean that the court can
ignore a clear failure in the pleading to allege facts which
set forth a claim cognizable in a federal district court.
See Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990); see also Ashcroft v. Iqbal, 556
U.S. 662, 684 (2009) (outlining pleading requirements under
Rule 8 of the Federal Rules of Civil Procedure for “all
petitioner cannot challenge his federal conviction and
sentence through § 2241 unless he can show under the
“savings clause” of § 2255(e) that a §
2255 motion is “inadequate or ineffective to test the
legality of his detention.” See 28 U.S.C.
§ 2255(e); see also Rice v. Rivera, 617 F.3d
802, 807 (4th Cir. 2010) (providing that if a federal
prisoner brings a § 2241 petition that does not fall
within the scope of the savings clause, the district court
must dismiss the unauthorized habeas petition for lack of
jurisdiction). The Fourth Circuit has held that a petitioner
must establish the following criteria to demonstrate that a
§ 2255 motion is inadequate or ineffective to test the
legality of a prisoner's sentence:
(1) [A]t 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.
United States v. Wheeler, 886 F.3d 415, 429 (4th
Petitioner fails to point to a retroactive change in the law
of the Supreme Court or the relevant circuit that rendered
his sentence illegal. First, the court notes that Petitioner
was sentenced in the Middle District of Florida, which is in
the Eleventh Circuit. Thus, the decisions of the Fourth and
Fifth Circuits in Simms and Davis are not
controlling here. But regardless, neither Simms or
Davis indicate that the decisions should be applied
retroactively. Thus, Petitioner fails to meet the first
and second prongs of the standard in Wheeler. And,
even if an authoritative court were to declare § 924(c)
unconstitutional and apply the decision retroactively,
Petitioner would likely meet the gatekeeping provision of
Petitioner's remedy, if any, appears to be to seek
permission to file a § 2255 motion in the court in which
he was sentenced by filing a motion for leave to file a
successive § 2255 motion in the United States Court of
Appeals for the Eleventh Circuit. See 28 U.S.C.
§ 2255(h). Therefore, this case should be dismissed
because this court lacks jurisdiction over the Petition.
See Wheeler, 886 F.3d at 426 ...