United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
petitioner, proceeding pro se, brings this action
pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant
to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local
Civil 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 Court. For the
reasons set forth below, it is recommended that the
petitioner's § 2241 petition be dismissed without
prejudice and without requiring the respondent to file an
answer or return.
petitioner's § 2241 petition was entered on the
docket on May 29, 2019 (doc. 1). The case is in proper form
for judicial screening.
Conviction and Sentence
26, 2010, the petitioner pled guilty in the United States
District Court for the District of South Carolina to Count 1
of an Indictment charging him with the unlawful transport of
a firearm in violation of 18 U.S.C. §§ 922(g)(1);
924(a)(2); 924(e). See United States v.
Asar, Cr. No. 7:10-429-BHH-1 (D.S.C.). On December 9,
2010, the Honorable G. Ross Anderson sentenced the petitioner
to a term of 180 months' imprisonment followed by five
(5) years of supervised release. Id. at doc. 56. The
sentence was enhanced based upon the Armed Career Criminal
Act (“ACCA”). Id. The petitioner
appealed, but the Fourth Circuit Court of Appeals affirmed
the district court on May 8, 2012. Id. at docs. 59;
81; see United States v. Asar, 480 Fed.Appx. 207
(4th Cir. 2012).
the pendency of his § 2255 motions-discussed below-the
petitioner, on May 23, 2018, filed a § 2241 action
(seeking relief via the § 2255 savings clause) in the
United States District Court for the Northern District of
Alabama, arguing that his sentence was unconstitutional in
light of Johnson. See Asar v. United States of
America, C/A No. 7:18-789-ACA-JHE (N.D. Ala.). The
petition was dismissed because the petitioner did not bring
the case into proper form. Id. at doc. 5.
§ 2255 Motions
petitioner has filed three separate § 2255 motions. The
first, filed in 2012, argued ineffective assistance of
counsel, that the petitioner did not have any predicate
offenses for ACCA purposes, and the rule of lenity. See
United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at
doc. 83. The petitioner's § 2255 motion was denied
on October 10, 2012. Id. at doc. 107, 2012 WL
4809145. The petitioner's appeal of his § 2255
motion was dismissed by the Court of Appeals on April 1,
2013. United States v. Asar, 516 Fed.Appx. 256 (4th
Cir. 2013), cert denied 570 U.S. 924 (2013).
22, 2013, the petitioner sought permission from the Court of
Appeals to file a second/successive § 2255 motion, which
was denied on August 8, 2013. See In re Asar, No.
13-314 (4th Cir. 2013). On March 11, 2016, the petitioner
again sought permission from the Court of Appeals to file a
second/successive § 2255 motion, which was granted on
May 5, 2016, in light of the United States Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), which was held to be retroactive on
collateral review by Welch v. United States, 136
S.Ct. 1257 (2016). See In re Asar, No. 16-224 (4th
Cir. May 5, 2016). The petitioner filed the authorized §
2255 motion on May 6, 2016. See United States v.
Asar, Cr. No. 7:10-429-BHH-1, at doc. 133. On July 19,
2017, the petitioner's motion was denied, finding that
his prior convictions still counted as priors for purposes of
the ACCA because they fall under the “force
clause” of the United States Sentencing Guidelines
(“USSG”). Id. at doc. 153. The
petitioner appealed, his appeal was dismissed, and the
Supreme Court denied certiorari. United States v.
Asar, No. 17-6977, 704 Fed.Appx. 280 (4th Cir. 2017)
(mem.), cert denied 139 S.Ct. 281 (2018)
on June 6, 2018, the petitioner filed a motion pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure.
United States v. Asar, Cr. No. 7:10-429-BHH-1, at
doc. 164. After the motion was denied, the petitioner filed a
motion to amend his Rule 60(b) motion, which was also denied.
Id. at docs. 166; 173; 174. The petitioner's
appeal of the denial was dismissed on March 1, 2019.
United States v. Asar, 755 Fed.Appx. 306 (4th Cir.
2019) (mem.), reh'g and reh'g
en banc denied. During this same time, the petitioner
unsuccessfully sought a writ of mandamus from the Court of
Appeals, arguing that the district court was unduly delaying
ruling on his Rule 60(b) motion. See In re Asar, 755
Fed.Appx. 266 (4th Cir. 2019) (mem.).
March 22, 2019, the petitioner sought permission from the
Court of Appeals to file a successive § 2255 motion.
See In re Asar, No. 19-165 (4th Cir.). On March 28,
2019, the petition filed a third § 2255 motion, despite
his request to file a § 2255 motion that was pending
before the Court of Appeals. See United States v.
Asar, Cr. No. 7:10-429-BHH-1, at doc. 187. The Court of
Appeals denied the petitioner's request on April 11,
2019. In re Asar, No. 19-165. To date, the
petitioner's third § 2255 motion-along with a motion
to dismiss the petitioner's § 2255 motion-is pending
in the United States District Court for the District of South
Carolina. See United States v. Asar, Cr. No.
the petitioner seeks habeas relief pursuant to 28 U.S.C.
§ 2241, claiming that his sentence is unconstitutionally
enhanced by the ACCA in light of Johnson. (doc. 1 at
8-10). For his relief, the petitioner requests that this
court vacate his current sentence and return his case to the