Peacock v. Bragg

          OPINION & ORDER

          Henry M. Herlong, Jr. Senior United States District Judge.

         This 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.^[1] 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 prejudice.

         I. Factual and Procedural History

         Peacock 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. 1).^[2] 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. 66).

         Peacock 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.)

         Peacock filed the instant § 2241 petition on July 17, 2018, ^[3] 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.^[4] (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.)

         Respondent filed Peacock's PSR on December 20, 2018. (PSR.) Peacock filed supplemental briefs on December 26, 2018 and January 9, 2019.^[5] (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.

         II. Discussion of the Law

         Objections 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).

         Upon 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.)

         A. Appeal Waiver

         Peacock 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.” Id.

         In this 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.

         B. ...