United States District Court, D. South Carolina, Charleston 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 Mary Gordon Baker, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Antwon Demetriu
Peacock (“Peacock”), a pro se federal prisoner,
seeks habeas corpus relief pursuant to 28 U.S.C. § 2241.
In her Report and Recommendation, Magistrate Judge Baker
recommends granting Respondent's motion to dismiss and
dismissing Peacock'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 Peacock's petition without
Factual and Procedural History
is incarcerated at FCI-Bennettsville. On March 19, 2008, a
federal grand jury issued a four-count indictment against
Peacock. United States v. Peacock, C.A. No.
5:08-cr-82-BR (E.D. N.C. ) (Indictment, ECF No.
On August 4, 2008, pursuant to a written plea agreement,
Peacock pled guilty to count one, conspiracy with intent to
possess and distribute more than fifty grams of crack
cocaine, in violation of 21 U.S.C. § 846, and count
three, felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924, in the United States
District Court for the Eastern District of North Carolina.
Id., (Plea Agreement, ECF No. 57). The plea
agreement contained a waiver of appellate rights.
Id., (Plea Agreement ¶ 2(c), ECF No. 57).
Peacock's sentencing range under the United States
Sentencing Guidelines (“USSG”) was 292 to 365
months' imprisonment as to count one, and 120 months'
imprisonment as to count three. Id., (PSR
¶¶ 61, 63). The USSG range included a career
offender enhancement under USSG § 4B1.1 based on
Peacock's prior North Carolina state drug convictions.
Id., (PSR ¶ 56). On December 1, 2008, Peacock
received a downward departure pursuant to USSG § 5K1.1
and was sentenced to 205 months' imprisonment, consisting
of 205 months as to count one and 120 months as to count
three, to be served concurrently. Id., (J., ECF No.
did not appeal his sentence. On January 11, 2011, Peacock
filed a motion to vacate, set aside, or correct the sentence
pursuant to 28 U.S.C. § 2255, which the district court
dismissed as untimely. (Mot. Dismiss Attach. 1 (Mem. Supp.
Mot. Dismiss 2), ECF No. 11-1.) On November 16, 2011, Peacock
filed a second § 2255 motion, which the
court dismissed as successive. (Id. Attach. 1 (Mem.
Supp. Mot. Dismiss 2), ECF No. 11-1.) On August 16, 2012,
Peacock filed a motion for authorization to file a successive
§ 2255 motion in the United States Court of Appeals for
the Fourth Circuit, which was denied on August 29, 2012.
(R&R 2-3, ECF No. 32.)
filed the instant § 2241 petition on July 17, 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. (§ 2241 Pet.
Attach. 1 (Mem. Supp. § 2241 Pet. 4-5), ECF No. 1-1.)
Respondent filed a motion to dismiss on September 25, 2018.
(Mot. Dismiss, ECF No. 11.) Peacock filed a response in
opposition on October 26, 2018. (Resp. Opp'n Mot. Dismiss,
ECF No. 16.) On November 29, 2018, Magistrate Judge Baker
ordered the parties to file supplemental briefing on several
issues and to produce Peacock's presentence investigation
report (“PSR”) and the guilty plea and sentencing
hearing transcripts. (Nov. 29, 2018 Text Order, ECF No. 17.)
filed Peacock's PSR on December 20, 2018. (PSR.) Peacock
filed supplemental briefs on December 26, 2018 and January 9,
2019. (First Suppl. Br., ECF No. 26; Second
Suppl. Br., ECF No. 30.) On January 12, 2019, Respondent
filed his supplemental brief and reported that the court
reporter from Peacock's guilty plea and sentencing
hearings was unable to locate the transcripts from those
hearings. (Resp. Suppl. Br. 2 n.2, ECF No. 31.) Magistrate
Judge Baker filed the Report and Recommendation on March 5,
2019, and recommends granting Respondent's motion to
dismiss and dismissing Peacock's petition because (1)
Peacock's petition is barred by a valid appeal waiver,
and (2) Peacock 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. 32.)
After receiving an extension, Peacock filed objections to the
Report and Recommendation on March 29, 2019. (Objs.,
generally, ECF No. 37.) 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 Peacock's objections
are non-specific, unrelated to the dispositive portions of
the Report and Recommendation, or merely restate his claims.
However, the court was able to glean two specific objections.
Peacock objects to the magistrate judge's conclusions
that (1) enforcing the appellate waiver in Peacock's plea
agreement will not result in a miscarriage of justice and (2)
Peacock's sentence does not “present an error
sufficiently grave to be deemed a fundamental defect, ”
under the Wheeler savings clause test. (Objs.,
generally, ECF No. 37.)
objects to the magistrate judge's conclusion that the
appeal waiver contained in Peacock's plea agreement bars
the instant action. (Id. 5, ECF No. 37.) Peacock
does not challenge the validity of the appeal waiver, but
instead argues that enforcing the appeal waiver would result
in a miscarriage of justice. (Id., ECF No. 37.)
Generally, “a Simmons-based challenge to a
sentence falls within the scope of a valid appeal
waiver.” United States v. Adams, 814 F.3d 178,
182 (4th Cir. 2016) (citing United States v.
Copeland, 707 F.3d 522, 529-30 (4th Cir. 2013)).
“A waiver remains valid even ‘in light of a
subsequent change in law.'” Id. (quoting
Copeland, 707 F.3d at 529). However, if enforcement
of an otherwise valid appeal waiver would result in a
miscarriage of justice, then the waiver will not apply.
Id. “A proper showing of ‘actual
innocence' is sufficient to satisfy the
‘miscarriage of justice' requirement.”
case, Peacock does not raise a claim of actual innocence.
Instead, he alleges that a subsequent change in law
undermines the validity of his sentence. Accordingly, Peacock
has not satisfied the “miscarriage of justice”
standard, and his claims fall within the scope of his appeal
waiver. Moreover, even if Peacock's claims were not
barred by a valid appeal waiver, for the reasons discussed
below, he cannot satisfy Wheeler's savings
clause test to proceed under § 2241. Thus, Peacock's
first objection is without merit.