United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
Before
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 11) recommending
that the Court dismiss Petitioner's Petition without
prejudice. For the reasons set forth below, the Court adopts
the R & R as the order of the Court and the Petition is
dismissed.
I.
Background
Petitioner
Carl Anthony Tucker is a prisoner at the Federal Correctional
Institution in Edgefield, South Carolina. (Dkt. No. 1). On
February 15, 2005, Petitioner pled guilty in the United
States District Court for the Eastern District of Tennessee
to bank robbery, use of a firearm during the commission of a
violent crime and felon in possession of a firearm, and was
sentenced to 262 months' imprisonment. Petitioner did not
appeal his conviction. (Dkt. No. 1 at 3.) On July 21, 2006,
Petitioner filed his first Petition under 28 U.S.C. §
2255, which was denied on August 9, 2006. On October 14,
2016, the Sixth Circuit permitted Petitioner to file a
successive § 2255 petition, which was ultimately
dismissed on November 1, 2016.
Petitioner
now files a Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241, arguing that his sentence is excessive
based on his minor role in the crime. Petitioner relies on
the Fourth Circuit decision in United States v.
Simms, 914 F.3d 229 (4th Cir. 2019) to argue that he
meets the savings clause test to seek relief from his
sentence via a § 2241 petition. The Magistrate Judge
recommended that the petition be dismissed without prejudice.
(Dkt. No. 11).
II.
Legal Standard
The
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1). This Court must make
a de novo determination of those portions of the R
& R Petitioner specifically object. Fed.R.Civ.P.
72(b)(2). Where Petitioner fails to file any specific
objections, "a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S.C. Dept of Corr.,
No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *l (D.S.C.
Mar. 12, 2015). See also Camby v. Davis, 718 F.2d
198, 200 (4th Cir. 1983)). Petitioner did not file
objections, and the R & R is therefore reviewed for clear
error.
III.
Discussion
The
Court finds that the Magistrate Judge correctly concluded
that the Petition should be dismissed. As discussed in the R
& R, a petitioner cannot challenge his federal conviction
and sentence pursuant to 28 U.S.C. § 2241 unless he
demonstrates that a motion under 28 U.S.C. § 2255 is
"inadequate or ineffective to test the legality of his
detention." 28 U.S.C. § 2255(e); see also Rice
v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Here,
Petitioner is challenging his federal conviction, arguing
that his sentence is excessive due to his minor role in the
commission of the crime because of a substantive change in
Fourth Circuit law in United States v. Simms, 914
F.3d 229 (4th Cir. 2019).
To
demonstrate that a § 2255 petition is inadequate or
ineffective to test the legality of his detention, a
petitioner must establish that:
(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 the 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
Cir. 2018).
Petitioner
argues that the substantive law changed after his sentencing
based on the decision in United States v. Simms, 914
F.3d 229 (4th Cir. 2019). However, as the Magistrate Judge
correctly held, Petitioner was convicted in the Sixth Circuit
and therefore cannot benefit from a change in the substantive
law of the Fourth Circuit. See Van Horrelbeke v. United
States, No. CA 0-08-3869-CMC-PJG, 2010 WL 146289, at *4
(D.S.C. Jan. 8, 2010) (holding that in applying the second
prong of the savings clause test, "the substantive law
relevant to a § 2241 petition is that of the circuit in
which the petitioner was convicted") citing Chaney
v. O 'Brien, No. CIV.A. 7:O7CVOOI2I, 2007 WL
1189641, at *l (W.D. Va. Apr. 23, 2007), aff'd,
241 Fed.Appx. 977 (4th Cir. 2007); Eames v. Jones,
793 F.Supp.2d 747, 750 (E.D. N.C. 2011) (finding that the law
of the circuit in which petitioner was convicted should apply
to § 2241 proceedings held in a different circuit).
Here,
since Petitioner was convicted in the Eastern District of
Tennessee, any alleged change in the substantive law of the
Fourth Circuit is insufficient to meet
Wheeler'?, second prong. Therefore, because the
Petitioner cannot establish the requirements of the §
2255 savings clause as provided in Wheeler, this
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