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Glover v. United States

United States District Court, D. South Carolina, Greenville Division

June 28, 2019

Anthony T. Glover, Petitioner,
v.
Warden, FCI Ashland, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         The 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.

         The 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.

         BACKGROUND

         Petitioner's Conviction and Sentence

         On 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.[1] 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.

         Petitioner's Previous § 2255 Motion

         The 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's Present Action

         The 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).

         STANDARD OF REVIEW

         The 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).

         DISCUSSION

         The 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 ...


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