Tucker v. Vareen

          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 ...