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Barrett v. Bragg

United States District Court, D. South Carolina, Greenville Division

April 18, 2019

Tauvaris Eugene Barrett, Petitioner,
v.
M. Travis Bragg,, Respondent.

          ORDER

          Timothy M. Cain United States District Judge

         Petitioner 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).

         The 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).

         Since 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).

         I. BACKGROUND/PROCEDURAL HISTORY

         The 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. ).[1]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).

         On July 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.

         On June 27, 2016, Petitioner filed another § 2255 motion, seeking resentencing pursuant to Simmons and Johnson.[2] 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 appeal.

         On 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.

         II. DISCUSSION

         The 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 Wheeler. Id.

         The 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).

         It is 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 that:

(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality ...

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