United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
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.
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that the
court grant Respondent's Motion to Dismiss.
Factual and Procedural Background
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.
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.
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.
Standard on Motion to Dismiss
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).
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).
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.
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.
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 ...