United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
Ponder (“Petitioner”), proceeding pro se, is an
inmate at the Federal Correctional Institution Williamsburg
in Salters, South Carolina, in the custody of the Bureau of
Prisons. He filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to
review such petitions for relief and submit findings and
recommendations to the district judge. For the following
reasons, the undersigned recommends the district judge
dismiss the petition in this case without requiring the
respondents to file an answer.
Factual and Procedural Background
18, 1998, a jury found Petitioner guilty of one count of
conspiracy to commit Hobbs Act robbery (Count 1); four counts
of Hobbs Act robbery, in violation of 18 U.S.C. § 1951
(Counts 2, 4, 6, and 8); four counts of using a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts 3, 5, 7, and 9);
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g) (Count 10); and one
count of possession of a stolen firearm, in violation of 18
U.S.C. § 922(j) (Count 11). United States v.
Ponder, No. 1:97-cr-00162-DMM (S.D. Fla.
1998). On August 26, 1998, the Southern District
of Florida (“Sentencing Court”) sentenced
Petitioner to 1015 months' imprisonment, consisting of:
(1) 235 months for the Hobbs Act charges (Counts 1, 2, 4, 6,
and 8), to run concurrently; (2) 120 months for the §
922 charges (Counts 10 and 11), to run concurrently with each
other and with the Hobbs Act sentence; (3) 60 months on Count
3, the first § 924(c) count; and (4) 240 months on the
remaining § 924(c) counts (Counts 5, 7, and 9), to run
consecutively to each other and to the sentences imposed on
the other counts. Id., ECF No. 88.
appeal, the Eleventh Circuit Court of Appeals affirmed
Petitioner's convictions and sentences. Id., ECF
No. 111; United States v. Brown, et. al., No.
98-5251 (11th Cir. Jan. 7, 2000). On November 27, 2000,
Petitioner filed a motion to vacate pursuant to 28 U.S.C.
§ 2255. Id., ECF No. 133. The Sentencing Court
denied Petitioner's motion on September 13, 2001,
id., ECF No. 137, and Petitioner did not appeal.
25, 2016, Petitioner sought permission from the Eleventh
Circuit to file a second § 2255 motion based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
See id., ECF No. 166 at 3. On June 24, 2016, before
a decision from the Eleventh Circuit, Petitioner filed his
second § 2255 motion in the Sentencing Court.
Id. Later that day, the Eleventh Circuit denied
Petitioner's application for leave to file a second
§ 2255 motion. See Order, No. 16-13022 (11th
Cir. June 24, 2016). On July 7, 2016, the Sentencing Court
dismissed Petitioner's § 2255 motion. See
Order, Ponder v. United States, No.
1:16-cv-22582-DMM (S.D. Fla. July 7, 2016), ECF No. 7.
now challenges his sentence, alleging conspiracy to commit
Hobbs Act robbery is no longer a “crime of
violence” after the Fourth Circuit's decision in
United States v. Simms, 914 F.3d 229 (4th Cir.
2019), and, therefore, he should be resentenced without
consideration of any of the § 924(c) counts. [ECF No. 1
Standard of Review
established local procedure in this judicial district, a
careful review has been made of this petition pursuant to the
Rules Governing Section 2254 Proceedings for the United
States District Court,  the Anti- Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, and other habeas corpus statutes.
Pro se complaints are held to a less stringent standard than
those drafted by attorneys. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged
with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89,
94 (2007). In evaluating a pro se complaint, the
plaintiff's allegations are assumed to be true. Fine
v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The
mandated liberal construction afforded to pro se pleadings
means if the court can reasonably read the pleadings to state
a valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean the court can ignore a clear failure in the
pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
is well established that defendants convicted in federal
court are obliged to seek habeas relief from their
convictions and sentences through § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)
(citing In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997)). In contrast, a petition filed under § 2241 is
typically used to challenge the manner in which a sentence is
executed. See In re Vial, 115 F.3d at 1194
n.5. A petitioner cannot challenge his federal conviction and
sentence under § 2241 unless he can satisfy the §
2255 savings clause, which states:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
28 U.S.C. § 2255(e); see also Rice, 617 F.3d at
807 (finding court lack jurisdiction over § 2241