United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
petitioner, Robert Lionel Sisk, a self-represented prisoner
confined at the Federal Prison Camp in Edgefield, South
Carolina, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. 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 dismissed.
Factual and Procedural Background
indicates he was convicted of conspiracy to possess with
intent to distribute cocaine and methamphetamine in violation
of 21 U.S.C. §§ 841, 856 in the United States
District Court for the Western District of North
Carolina. (Pet., ECF No. 1 at 1, ECF No. 1-1 at 1.)
Petitioner also indicates he was sentenced under the career
offender provision of the United States Sentencing
Guidelines, § 4B1.1, to 276 months' imprisonment.
(Id., ECF No. 1-1 at 1-2.) Petitioner claims the
career offender designation was based on two prior North
Carolina misdemeanor convictions for assault on a female.
(Id.) Petitioner indicates he filed a motion to
vacate, set aside, or correct the sentence pursuant to 28
U.S.C. § 2255 in the Western District of North Carolina
that was denied. (Id., ECF No. 1 at 3-4.) Petitioner
also filed two petitions for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 in this court that were
now files this § 2241 petition pursuant to
Wheeler, arguing his sentence is now unlawful
because his prior convictions are no longer predicate
offenses under the career offender provision of the
sentencing guidelines. Specifically, Petitioner claims the
United States Court of Appeals for the Fourth Circuit's
decision in United States v. Vinson, 805 F.3d 120
(4th Cir. 2015) has changed the analysis for whether a North
Carolina conviction for assault on a female counts as a
predicate offense. (Id., ECF No. 1-1 at 5-6.)
Petitioner argues that because the Fourth Circuit found that
assault on a female can be proven by establishing “mere
culpable negligence, ” the offense can longer be used
as predicate offense under the career offender provision.
(Id.) Petitioner asks the court to order his
immediate release. (Id., ECF No. 1 at 7.)
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 civil
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 United States Court of Appeals for 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
(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
case, Petitioner argues his two prior North Carolina
convictions for assault on a female no longer count as
predicate offenses under the sentencing guidelines based on
United States v. Vinson, 805 F.3d 120 (4th Cir.
2015). In Vinson, the Fourth Circuit held that
Vinson's prior North Carolina misdemeanor conviction for
assault on a female did not qualify as a “misdemeanor
crime of domestic violence” under a federal statute
barring possession of a firearm by a person previously
convicted of a misdemeanor crime of domestic violence, 18
U.S.C. § 922(g). See Vinson, 805 F.3d at
122-26. However, Petitioner was not convicted under 18 U.S.C.
§ 922(g). Rather, Petitioner was convicted under 21
U.S.C. §§ 841, 846, and his sentence was enhanced
under the career offender provision of the sentencing
guidelines, U.S.S.G. § 4B1.1. Thus, Vinson did
not change the substantive law under which Petitioner was
sentenced. Cf. Beckles v. United States, 137 S.Ct.
886, 894 (2017) (holding that the residual clause in §