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Velez v. Warden, F.C.I. Estill

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

May 7, 2019

Marco Antonio Velez, #10511-171, Petitioner,
v.
Warden, F.C.I. Estill, Respondent.

          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 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 review.

         I. Background

         Petitioner 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.)

         Petitioner 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 § 2241 relief.

         II. Legal Standard

         The 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 explanation.").

         III. Discussion

         After 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.

         The 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).

         Petitioner 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.

         Whether 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 consideration.

         IV. Conclusion

         For the 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 ...


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