United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
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.
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.)
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.)
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.
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
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.)
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 § ...