United States District Court, D. South Carolina, Greenville Division
Anthony T. Glover, Petitioner,
Warden, FCI Ashland, Respondent.
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 3, 2019 (doc. 1). On May 8 and June 5, 2019,
the undersigned issued orders informing the petitioner that
his petition was not in proper form for judicial screening
(docs. 5; 8). On May 24 and June 24, 2019, the petitioner
provided additional documentation to the court and the case
is now in proper form.
Conviction and Sentence
January 12, 2015, the petitioner pled guilty in the United
States District Court for the District of South Carolina to
conspiracy to distribute narcotics and the unlawful transport
of firearms. See United States v. Glover,
C/A No. 3:14-cr-0240-JFA-4, at docs. 254; 257 (D.S.C.). On
April 20, 2015, the Honorable Joseph F. Anderson, Jr.,
sentenced the petitioner to two concurrent terms of 120
months' imprisonment, followed by eight years of
supervised release. Id. at docs. 297; 303. The
sentence did not include a career offender or an Armed Career
Criminal Act (“ACCA”) enhancement, but was based
upon the quantity of drugs for which the petitioner was
charged. Id. at docs. 297; 303. The petitioner did
not file a direct appeal of his conviction or sentence.
Previous § 2255 Motion
petitioner filed a motion pursuant to 28 U.S.C. § 2255
on April 21, 2016, arguing that pursuant to Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States, 136 S.Ct. 1257 (2016), his sentence was
improperly enhanced and that he should not have received a
2-level guideline enhancement under § 2D1.1(b)(1).
Id. at doc. 370. The petitioner's motion was
denied on January 19, 2017. Id. at doc. 375. Judge
Anderson ruled that the petitioner could not seek relief
under Johnson/Welch because he was not sentenced as
a career offender or as an armed career criminal; instead,
his sentence was based upon the large amount of heroin
attributable to him. Id. Judge Anderson also
rejected the petitioner's challenge to the 2-level
guideline enhancement he received for possession of firearms
under § 2D1.1(b)(1). Id.
petitioner now seeks habeas relief pursuant to 28 U.S.C.
§ 2241, claiming that his sentence is unconstitutional
in light of Johnson/Welch, that he received
ineffective assistance of counsel, that his indictment was
based on an improper wire tap, his two level firearm
enhancement was unwarranted, and that his one level
“weed enhancement” was improper (docs. 1; 1-2).
For his relief, the petitioner seeks a sentence reduction
(doc. 1-2 at 9).
undersigned has reviewed the petition pursuant to the Rules
Governing Section 2254 Cases in the United States District
Courts; the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214; and other habeas corpus statutes. As a pro se
litigant, the petitioner's pleadings are accorded liberal
construction and held to a less stringent standard than
formal pleadings drafted by attorneys. See Erickson v.
Pardus, 551 U.S. 89 (2007) (per curiam). The
mandated liberal construction means that if the court can
reasonably read the pleadings to state a valid claim on which
the petitioner could prevail, it should do so. However, the
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleading to allege
facts which set forth a claim cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
petitioner filed this action pursuant to 28 U.S.C. §
2241 (doc. 1). The petitioner is incarcerated in the Eastern
District of Kentucky and names the Warden of FCI Ashland as
the respondent (doc. 1-2 at 1). As such, at this stage in the
proceedings, the § 2241 petition is appropriately before
this court for adjudication. See Hill v. Quintana,
__ Fed.Appx. __, 2019 WL 1934892 (4th Cir. 2019) (mem)
(unpublished) (finding improper sua sponte dismissal on the
ground that the petition was filed in the improper venue).
Liberally construing the petitioner's allegations, the