United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge
Tauvaris Eugene Barrett, a federal prisoner proceeding
pro se, filed this action pursuant to 28 U.S.C.
§ 2241, seeking relief from his sentence. (ECF No. 1).
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. 9). The magistrate
judge notified Petitioner of his right to file objections to
the Report, id. at 9, and Petitioner filed timely
objections (ECF No. 12).
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 his Report. (ECF No.
9 at 1-2). Briefly, on May 9, 2002, Petitioner pled guilty in
the United States District Court for the Middle District of
North Carolina to Count 2 of an Indictment, charging him with
distributing crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A). United States v.
Barrett, C/A No. 1:02-cr-00067-LCB-1, at doc. 10 (M.D.
N.C. ).Petitioner was sentenced to 280 months of
imprisonment, five years of supervised release, and a $100
special assessment fee. Id. at docs. 11; 12.
Petitioner subsequently filed a direct appeal. Id.
at doc. 16. While his direct appeal was pending, Petitioner
filed a motion for relief under 28 U.S.C. § 2255, which
was dismissed without prejudice that same day with
instructions for Petitioner to file his Petition on the
proper form. Id. at docs. 31; 32. Subsequently,
Petitioner's direct appeal was voluntarily dismissed
pursuant to Fed. R. App. P. 42(b) on August 22, 2003.
Id. at doc. 33; United States v. Barrett,
C/A 03-4182 (4th Cir. 2003).
23, 2010, Petitioner filed a motion seeking a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2).
Barrett, C/A No. 1:02-cr-00067-LCB-1, at doc. 38
(M.D. N.C. ). The Middle District of North Carolina denied
that motion on May 19, 2011. Id. at doc. 43.
Subsequently, on October 3, 2011, Petitioner filed a motion
to vacate, set aside, or correct his sentence pursuant to
§ 2255, challenging his career offender status and
seeking resentencing based upon United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011). Id. at
docs. 44; 45; 48. While Petitioner's § 2255 motion
was pending, the Fourth Circuit Court of Appeals decided
United States v. Foote, 784 F.3d 931 (4th Cir.
2015), determining that a challenge to a career offender
designation based on Simmons was not a
“fundamental defect” and, therefore, that it was
not the type of alleged sentencing error that could be
attacked on collateral review. Accordingly, the Middle
District of North Carolina issued a text order on October 5,
2015, which allowed Petitioner thirty days to withdraw his
pending § 2255 without prejudice or file a supplemental
brief addressing the impact of Foote.
Barrett, C/A No. 1:02-cr-00067-LCB-1 (M.D. N.C. ).
On December 3, 2015, Petitioner moved to withdraw his §
2255 motion, and the court granted his motion. Id.
at docs. 80; 81; 83. Accordingly, Petitioner's motion was
dismissed without prejudice. Id. at doc. 83.
27, 2016, Petitioner filed another § 2255 motion,
seeking resentencing pursuant to Simmons and
Johnson. Id. at doc. 84. On February 13,
2017, a federal magistrate judge recommended that the motion
be denied on the merits. Id. at doc. 85. Petitioner
did not file any objections to the recommendation, and on
March 10, 2017, the district judge adopted the recommendation
and denied Petitioner's § 2255 motion with
prejudice. Id. at doc. 89. Petitioner did not
February 14, 2019, Petitioner filed the instant Petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241,
asking the court to vacate his current sentence and remand
for resentencing. (ECF No. 1 at 8). Petitioner asserts that
he was erroneously classified as a career offender, which
increased his mandatory minimum sentence. Id. at 2.
Petitioner further argues that a § 2255 motion is
inadequate and ineffective in challenging his sentence and
that he relies on a new rule of constitutional law that was
previously unavailable to him. Id. at 6-7.
magistrate judge recommends that the Petition be dismissed
because Petitioner has not satisfied the § 2255 savings
clause to seek relief under § 2241. (ECF No. 9 at 7).
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. 12). However, Petitioner did specifically
object to the magistrate judge's determinations that he
has not satisfied the requirements of the § 2255 savings
clause and that he has not sufficiently met the test in
magistrate judge correctly noted in his Report that 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.” (ECF No. 9 at 4 - 5) (citing §
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 to demonstrate that a § 2255 motion is
inadequate and ineffective to test the legality of a
conviction, a petitioner in this circuit must show
(1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality ...