United States District Court, D. South Carolina, Rock Hill Division
Timothy M. Cain, United States District Judge
Josand Farmer, a federal prisoner proceeding pro se,
filed this action pursuant to 28 U.S.C. § 2241, seeking
relief from his sentence. Pursuant to 28 U.S.C. § 636(b)
and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this case was
referred to a magistrate judge for pretrial handling. Before
the court is the magistrate judge's Report and
Recommendation (“Report”), recommending that this
court dismiss the Petition without prejudice and without
requiring Respondent to file a return. (ECF No. 7). The
magistrate judge notified Petitioner of his right to file
objections to the Report, id. at 5, and Petitioner
filed timely objections (ECF No. 9).
recommendations set forth in the Report have no presumptive
weight, and this court remains responsible for making a final
determination in this matter. See Mathews v. Weber,
423 U.S. 261, 270-71 (1976). The court is charged with making
a de novo determination of those portions of the
Report to which a specific objection is made, and the court
may accept, reject, modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1). However, the
court need not conduct a de novo review when a party
makes only “general and conclusory objections that do
not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Petitioner has filed this Petition pro se, this
court is charged with construing the Petition liberally in
order to allow for the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9
(1980) (internal citations omitted); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However,
this does not mean that the court can ignore the
Petitioner's failure to allege facts that set forth a
claim currently cognizable in a federal district court.
See Weller v. Dep't of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990).
magistrate judge set forth the facts in her Report. (ECF No.
7). Briefly, on March 24, 2011, a jury found Petitioner
guilty of the following charges: (1) conspiracy to distribute
fifty or more grams of cocaine, one kilogram of phencyclidine
(PCP), and a quantity of 3, 4 Methylenedioxymethamphetamine
(MDMA) (count one); (2) aiding and abetting the distribution
of five grams or more of cocaine base (count three); and (3)
aiding and abetting the distribution of a quantity of cocaine
base (count seven). (ECF No. 1-1 at 1). Petitioner was
sentenced on September 26, 2011, in the Eastern District of
North Carolina. (ECF No. 1 at 1).
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 in November 2012,
id. at 4, and such motion was denied in December
2013, Farmer v. United States, No. 5:10-CR-271-FL-3,
2013 WL 6799977 (E.D. N.C. Dec. 20, 2013). Petitioner
appealed, and the Fourth Circuit Court of Appeals dismissed
the appeal. United States v. Farmer, 576 Fed.
App'x 245 (4th Cir. 2014). The Supreme Court of the
United States denied Petitioner's petition for writ of
certiorari on February 23, 2015. Farmer v. United
States, 135 S.Ct. 1437 (2015). Petitioner contends that
he later filed a motion pursuant to 28 U.S.C. §
2244(b)(3)(A), seeking permission to file a second or
successive § 2255 motion premised on the contention that
he no longer qualified as a career offender in light of
Johnson v. United States, 135 S.Ct. 2551 (2015), and
that such motion was granted. (ECF No. 6 at 4).
September 27, 2017, Petitioner filed a habeas petition with
this court pursuant to § 2241, asserting actual
innocence and claiming that his sentence included an improper
enhancement. Farmer v. Ramirez, No.
0:17-cv-02614-TMC (Sept. 27, 2017) (Docket entry 1 at 6-7).
The undersigned denied that habeas petition on December 12,
2017. Farmer v. Ramirez, No. 0:17-2614-TMC, 2017 WL
634501 (D.S.C. Dec. 12, 2017). Petitioner appealed, and the
Fourth Circuit dismissed his appeal. Farmer v.
Ramirez, 712 Fed. App'x 270 (4th Cir. 2018).
However, the Fourth Circuit Court of Appeals subsequently
clarified the test for when § 2255 is inadequate and
ineffective to test the legality of a sentence, allowing a
defendant to “pass through the savings clause
portal” and bring his claim pursuant to § 2241.
United States v. Wheeler, 886 F.3d 415, 429-434 (4th
Cir. 2018). Accordingly, the Fourth Circuit granted a panel
rehearing in Petitioner's case. At that rehearing, in
applying the Wheeler test, the Fourth Circuit held
that Petitioner had not shown a sentencing error
“premised on a change in settled substantive law”
and concluded that his claims could have been “raised
on direct appeal.” Farmer v. Rarmirez, 732
Fed. App'x 222, 222 (4th Cir. 2018). Accordingly, the
Fourth Circuit dismissed the petition. Id.
Petitioner filed a second habeas petition pursuant to §
2241, challenging both his conviction and sentence and
arguing that the trial judge improperly calculated the
illegal substances attributable to Petitioner and that his
sentence was enhanced on a non-existent prior conviction.
Farmer v. Antonelli, No. 0:18-cv-1922-TMC, 2018 WL
4767240, at *1 - 2 (D.S.C. Oct. 3, 2018). Finding that
Petitioner failed to show that a § 2255 motion was
inadequate or ineffective to test the legality of his
sentence and conviction, the court dismissed the petition
without prejudice for lack of jurisdiction. Id. at
*1 - 5. Petitioner appealed this decision, and the Fourth
Circuit affirmed. Farmer v. Antonelli, 746 Fed.
App'x 268 (4th Cir. 2018).
December 28, 2018, Petitioner filed the instant Petition for
writ of habeas corpus pursuant to § 2241, asking the
court to vacate his current sentence and remand for
resentencing. (ECF No. 1 at 9). In this Petition, Petitioner
asserts that he was sentenced according to an improper
mandatory minimum under the 2010 Sentencing Guidelines and
that he did not get the benefit of the Fair Sentencing Act of
2010 being sentenced after the Act's passing.
Id. at 8.
magistrate judge recommends that the Petition be dismissed
because Petitioner has not shown that his challenges to his
sentence and conviction rely on a change in substantive law,
and, therefore, has not satisfied the § 2255 savings
clause to seek relief under § 2241. (ECF No. 7 at 4).
Petitioner filed objections to the Report, but rather than
containing specific objections to the magistrate judge's
findings of fact and conclusions, Petitioner's objections
largely restated his claims or were nonresponsive to the
Report. (ECF No. 9). However, Petitioner did specifically
object to the magistrate judge's determinations that he
has not satisfy the requirements of the § 2255 savings
clause and that he has not sufficiently met the test in
magistrate judge correctly noted in her Report that in order
for a petitioner to challenge his federal conviction or
sentence under § 2241, he must show, under the
“savings clause” of § 2255(e), that a §
2255 motion is “inadequate or ineffective to test the
legality of his detention.” § 2255(e). The savings
clause is a “jurisdictional provision, ” and,
accordingly, this court is without jurisdiction to rule on a
§ 2241 petition if such a showing is not made.
United States v. Wheeler, 886 F.3d 415, 423 (4th
Cir. 2018); see also Rice v. Rivera, 617 F.3d 802,
807 (4th Cir. 2010).
well-settled that in order to demonstrate that a § 2255
motion is inadequate and ineffective to test the legality of
a conviction, ...