United States District Court, D. South Carolina, Anderson Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 11) recommending
that Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 be dismissed without
prejudice. For the reasons set forth below, the Court
declines to adopt the R & R as the Order of the Court and
refers this matter back to the Magistrate Judge for further
Marco Velez is an incarcerated person petitioning pro
se for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Dkt. No. 1.) In 2004, Petitioner pled guilty to
one count of using and carrying a firearm during and in
relation to, and possessing a firearm in furtherance of, a
federal drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). (United States, v. Velez,
4:04-cr-0093-TLW, Dkt. Nos. 43, 44.) Petitioner was sentenced
to 276 months' imprisonment and five years'
supervised release. The sentence was based in part on the
finding that Petitioner was a career offender due to his
prior conviction for assault and battery of a high and
aggravating nature ("ABHAN") in South Carolina.
(Id. at Dkt. Nos. 52, 56.)
filed his first 28 U.S.C. § 2255 motion on March 9,
2007. (Id. at Dkt. No. 88.) In 2016, the Court of
Appeals for the Fourth Circuit granted Petitioner's
motion to file a second or successive § 2255 petition.
(Id. at Dkt. No. 126.) Petitioner asserted in the
second § 2255 motion the unconstitutionality of his
career offender enhancement. (Id. at Dkt. No. 127.)
While that motion remained pending before the sentencing
court, Petitioner brought the instant petition for §
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight and the
responsibility to make a final determination remains with the
Court. See, e.g., 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)(C).
Where there are specific objections to the R & R, the
Court "makes a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made."
Id. Where a petitioner has not objected, the Court
reviews the R & R to "only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) ("In the absence of
objection ... we do not believe that it requires any
careful review of the record, the Court declines to adopt the
R & R and refers this matter back to the Magistrate Judge
for further review.
instant § 2241 petition challenges the validity of
Petitioner's sentence. Generally, a § 2241 petition
"attacks the execution of a sentence rather than its
validity, whereas a § 2255 motion attacks the legality
of detention." Brown v. Rivera, No.
9:08-CV-3177-PMD-BM, 2009 WL 960212, at *2 (D.S.C. Apr. 7,
2009) (internal quotation marks omitted). Moreover, the
exclusive remedy for collaterally attacking the imposition of
a sentence is to seek relief under § 2255, unless that
remedy is "inadequate or ineffective." 28 U.S.C.
§ 2255(e). A § 2255 petition is inadequate or
ineffective when: "(1) at the time of conviction,
settled law of [the Fourth] circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to
the prisoner's direct appeal and first § 2255
motion, the substantive law changed such that the conduct of
which the prisoner was convicted is deemed not to be
criminal; and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of
constitutional law." In re Jones, 226 F.3d 328,
333-34 (4th Cir. 2000); see also United States v.
Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
argues for relief under § 2241 because his § 2255
motion was, at the time, pending disposition before the
sentencing court and, therefore, was a "de facto denial
of relief." (Dkt. No. 1 at 4.) The Magistrate Judge
noted that district courts in this circuit have found that a
§ 2255 motion is not per se inadequate because
it is pending disposition, and recommended the § 2241
petition be dismissed on that basis. See, e.g., Brown v.
Bragg, No. CV 6:18-1164-MBS, 2019 WL 161963, at *2
(D.S.C. Jan. 10, 2019). Petitioner also acknowledged to the
sentencing court that in light of the U.S. Supreme
Court's denial of certiorari in United States v.
Thilo Brown, 139 S.Ct. 14 (2019), he "does not
appear to be entitled to relief in this successive §
2255" petition. (No. 4:04-cr-0093-TLW, Dkt. No. 135.)
The sentencing court then dismissed the § 2255 petition
as untimely. (Id. at Dkt. No. 139.) The Court,
therefore, declines to adopt the R & R as the Order of
the Court because its reasoning is mooted by the subsequently
dismissed § 2255 motion.
Petitioner is now entitled to § 2241 relief, including
in light of whether ABHAN constitutes a crime of violence in
South Carolina to support a sentencing enhancement, is
referred back to the Magistrate Judge for further
foregoing reasons, the Court DECLINES TO
ADOPT the R & R of the Magistrate Judge (Dkt.
No. 11) as the Order of the Court and this matter is
REFERRED BACK ...