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Brooks v. Bragg

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

April 25, 2019

Marcellus Raynard Brooks, Petitioner,
v.
Warden Travis Bragg, Respondent.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge.

         Before the Court is the Magistrate Judge's Report and Recommendation ("R & R") recommending that Petitioner's Petition be dismissed without prejudice. (Dkt. No. 39). For the reasons set forth below, the Court adopts the R & R as the order of the Court and the Petition is dismissed without prejudice.

         I. Background

         Petitioner Marcellus Raynard Brooks filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that a recent change in substantive law made his armed career offender enhancement unlawful. (Dkt. No. 1). Petitioner is incarcerated at the Federal Correctional Institution in Bennettsville, South Carolina, On October 13, 2009, Petitioner entered a guilty plea to felon in possession of a firearm in the District of South Carolina and was sentenced to 210 months imprisonment. Petitioner filed a notice of appeal on March 1, 2011, and the Fourth Circuit dismissed the appeal on March 28, 2012. Petitioner did not file a Petition under 28 U.S.C. §2255. (Dkt. No. 1.)

         Respondent filed a motion to dismiss, arguing the court lacks jurisdiction, and Petitioner opposes the motion. (Dkt. Nos. 19, 35.) The Magistrate Judge issued a R & R recommending that this court grant Respondent's motion and dismiss the Petition without prejudice. (Dkt. No. 39.)

         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-C V-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

         Petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause unless 'the remedy by motion 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). To demonstrate that § 2255 is inadequate or ineffective to test the legality of his detention, the petitioner must establish that:

(1) at 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 Cir. 2018).

         Petitioner here challenges his sentence as unlawful, arguing that the substantive law applicable to his sentence changed in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which addressed North Carolina law, and was deemed retroactive by Miller v. United States, 735 F.3d 141 (4th Cir. 2013). (Dkt. No. 1.) He claims that any § 2255 motion he files would be untimely and therefore a § 2255 motion is inadequate or ineffective. (Dkt. Nos. 1, 25.)

         To begin with, Petitioner here has not filed any Petition under § 2255, and therefore cannot demonstrate that this motion is "subsequent to [his] direct appeal and first § 2255 motion." Wheeler, 886 F.3d at 429. Further, as the Magistrate Judge correctly concluded, Petitioner cannot show that § 2255 is inadequate to test the legality of his sentence. Instead, "the remedy afforded by § 2255 is not rendered inadequate or ineffective.. .because an individual is procedurally barred from filing a § 2255 motion...." In re Vial,115 F.3d 1192, 1194 n.5 (4th Cir. 1997). District courts have similarly found that petitioners cannot meet the § 2255(e) savings clause merely because the statute of limitations for a § 2255 motion has lapsed. See Leach v. Ramirez, No. CV 2:17-1669-RMG, 2017 WL 6060602, at *l (D.S.C. Dec. 6, 2017) (finding § 2255 motion is not inadequate where "the statute of limitations for a § 2255 motion has lapsed"); Witchard v. Antonelli, No. CV 8:18-1236-HMH-JDA, 2018 WL 2422055, at *2 (D.S.C. May 14, 2018), report and recommendation adopted, No. CV 8:18-1236-HMH-JDA, 2018 WL 2417213 (D.S.C. May 29, 2018), aff`d,736 Fed.Appx. 54 (4th Cir. 2018) ("[t]hat a ยง ...


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