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Brooks v. Bragg

United States District Court, D. South Carolina

May 12, 2019

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

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge

         Marcellus Raynard Brooks (“Petitioner”), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate incarcerated at Federal Correctional Institution Bennettsville, in the custody of the Federal Bureau of Prisons. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 19. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 20. After obtaining three extensions, Petitioner failed to file a response. The court issued an order on January 29, 2019, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by February 12, 2019. ECF No. 32. Petitioner filed a response on February 14, 2019. ECF No. 35.

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's Motion to Dismiss.

         I. Factual and Procedural Background

         On October 13, 2009, Petitioner entered a guilty plea in the United States District Court for the District of South Carolina to being a felon in possession of a firearm. United States v. Brooks, Cr. No.: 2:09-468-PMD-1 (Feb. 23, 2011) (“Brooks I”), ECF No. 47.[1] On February 23, 2011, the court entered judgment against Petitioner and sentenced him to 210 months' imprisonment. Id., ECF No. 74. Petitioner filed a notice of appeal on March 1, 2011, and the Fourth Circuit Court of Appeals dismissed the appeal on March 28, 2012. Id., ECF Nos. 81, 99. Petitioner did not file a motion to vacate judgment under 28 U.S.C. § 2255. ECF No. 1-1 at 2.

         Petitioner filed the instant habeas petition seeking resentencing arguing that a recent change in substantive law made his armed career offender enhancement unlawful. ECF Nos. 1; 1-1.

         II. Discussion

         A. Standard on Motion to Dismiss

         Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).

         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 district 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. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that 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 that 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. 1990).

         B. Analysis

         Petitioner cites to the holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) and contends his sentence is unlawful because the three drug convictions used to enhance his sentence did not have aggravating factors that subjected him to punishment above an eight-year cap. ECF No. 1-1 at 2-6. Petitioner argues his three convictions are therefore not serious drug offenses and cannot be used for an armed career criminal enhancement. Id. at 6.

         Respondent seeks dismissal of the instant petition contending Petitioner has not filed a § 2255 motion and therefore cannot demonstrate § 2255 is inadequate or ineffective to challenge his sentence. ECF No. 19-1 at 7-11. In response, Petitioner argues any § 2255 motion he could file would be untimely which proves that § 2255 is inadequate. ECF No. 35 at 1-2.

         “[I]t 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 motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In reVial, 115 F.3d at 1194 n.5. A petitioner cannot ...


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