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 28, 2019 (doc. 1). The case is in proper form
for judicial screening.
Conviction and Sentence
February 23, 2009, the petitioner pled guilty in the United
States District Court for the Eastern District of North
Carolina to Count 1 of an indictment charging him with
conspiracy to distribute and possession with the intent to
distribute more than fifty grams of cocaine base (crack) and
more than five kilograms of cocaine in violation of 21 U.S.C.
§ 846. See United States v. Barksdale,
Cr. No. 5:08-382-BO-1, at doc. 29 (E.D. N.C. ). On March 18,
2010, the Honorable Terrence W. Boyle sentenced the
petitioner to a term of 330 months' imprisonment (with
credit for time served) followed by five years of supervised
release. Id. at doc. 61. The sentence included a
career offender sentencing enhancement applied under USSG
§ 4B1.1. Id. The petitioner appealed, and
subsequently voluntarily dismissed his appeal with the Fourth
Circuit Court of Appeals. Id. at docs. 62; 74.
pursuing other avenues of relief-as discussed below-the
petitioner, on May 14, 2012, filed a motion to reduce his
sentence based upon United States v. Simmons, 649
F.3d 237 (4th Cir. 2011). Id. at doc. 84. Two weeks
later, the petitioner filed a second motion to reduce
sentence, with the second motion based upon 18 U.S.C. §
3582(c). Id. at doc. 85. The petitioner's
motions were denied on July 11, 2014, due to the quantity of
drugs to which the petitioner pled guilty. Id. at
petitioner then filed a sealed motion to reduce his sentence,
which was denied on January 9, 2014, by the court.
Id. at docs. 122; 123. The petitioner appealed, and
the Court of Appeals affirmed on October 21, 2014. United
States v. Barksdale, 585 Fed.Appx. 19 (4th Cir. 2014)
(mem.). Three months later, on February 2, 2015, the
petitioner filed another motion, seeking a reduction in his
sentence based upon Amendment 782 to the United States
Sentencing Guidelines (“USSG”). United States
v. Barksdale, Cr. No. 5:08-382-BO-1, at doc. 144. The
motion was denied on June 22, 2016, based upon the quantity
of drugs to which the petitioner pled. Id. at doc.
§ 2255 Motions
petitioner filed his first § 2255 motion on July 10,
2012, arguing Simmons, ineffective assistance of
counsel, and actual innocence (because he was no longer a
career offender in light of case law disqualifying some of
his prior convictions). Id. at doc. 97. He then
amended his motion to clarify that he was asserting that his
motion was timely. Id. at doc. 100. The
petitioner's motion was denied on October 18, 2012.
Id. at doc. 117. The order indicated that the
petitioner could not seek relief under Simmons
because Simmons was not retroactive on collateral
review. Id. The order continued that even if
Simmons were retroactive, it provided the petitioner
with no relief because the petitioner's guideline range
would exceed the offense level required by the career
offender designation. Id.
3, 2016, the petitioner filed a motion with the Court of
Appeals seeking authorization to file a successive habeas
application in light of the United States Supreme Court
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). In re Barksdale, No. 16-521 (4th Cir. 2016).
The Court of Appeals denied the petitioner's request,
noting that the petitioner had two prior controlled substance
offense convictions for purposes of the career offender
enhancement-even disregarding his conviction for assault with
a deadly weapon under Johnson. Id. at doc.
Prior § 2241 Petitions
petitioner has filed a total of three § 2241 habeas
petitions (including the instant action) seeking relief via
the savings clause provided for in § 2255. The first was
filed in the United States District Court for the Middle
District of Florida on February 22, 2016. See Barksdale
v. Warden, FCC Closeman - USP 1, C/A No. 5:16-92-WTH-PRL
(M.D. Fla.). The petitioner's § 2241 petition was
dismissed on January 30, 2017, for lack of subject matter
jurisdiction because the petitioner did not meet the savings
clause test set forth by the Eleventh Circuit Court of
Appeals. Id. at doc. 9.
petitioner's second § 2241 petition was filed in the
United States District Court for the Southern District of
West Virginia on June 8, 2017. See Barksdale v.
Rickard, C/A No. 1:17-3216 (S.D. W.Va.) (“West
Virginia Habeas Case”). The petitioner sought relief
via § 2241, arguing that (1) his prior convictions were
erroneously counted as two separate convictions; thus, he
should not be sentenced as a career offender, and (2) his
prior under N.C. General Statute § 14-32(b) no longer
qualifies as a prior for career offender enhancement under
USSG § 4B1.1(a). Id. at doc. 1. On December 19,
2017, Proposed Findings and Recommendations by the United
States Magistrate Judge Cheryl A. Eifert recommended
construing the petitioner's § 2241 petition as a
§ 2255 motion and that the ...