United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kevin F. McDonald, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Difankh Asar
(“Asar”), a pro se federal prisoner, seeks habeas
corpus relief pursuant to 28 U.S.C. § 2241. In his
Report and Recommendation filed June 3, 2019, Magistrate
Judge McDonald recommends dismissing Asar's petition
without prejudice and without requiring the Respondent to
file a return.
filed objections to the Report and Recommendation. Objections
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of Asar's objections
are non-specific, unrelated to the dispositive portions of
the Report and Recommendation, or merely restate his claims.
However, the court was able to glean one specific objection.
Asar objects to the magistrate judge's conclusion that he
cannot satisfy the second prong of the 28 U.S.C. §
2255(e) savings clause test set forth in United States v.
Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), because the
cases on which he relies, Johnson v. United States,
135 S.Ct. 2551 (2015), and Welch v. United States,
136 S.Ct. 1257 (2016), were decided before he filed his first
§ 2255 motion. (Objs. 1-2, ECF No. 10.)
federal prisoner may challenge the legality of his sentence
under § 2241 if the prisoner can demonstrate that §
2255 is inadequate or ineffective to test the legality of the
sentence. See In re Jones, 226 F.3d 328,
333 (4th Cir. 2000) (citing 28 U.S.C. § 2255);
Wheeler, 886 F.3d at 428. To demonstrate that §
2255 is inadequate or ineffective to test the legality of the
sentence, the petitioner must establish that
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
Id. at 429. If the petitioner cannot satisfy each
prong of the savings clause test, the court lacks subject
matter jurisdiction to consider the petition. Id. at
26, 2010, Asar pled guilty to one count of unlawful transport
of firearms in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e). United States v. Asar, Cr.
No. 7:10-429-BHH-1 (D.S.C.). On December 9, 2010, Asar was
sentenced to 180 months' imprisonment. Id. (J.,
ECF No. 56). Asar's sentence was enhanced pursuant to the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), based on seven prior convictions. Id.
(PSR). Asar appealed his sentence, and the United States
Court of Appeals for the Fourth Circuit affirmed the
sentence. United States v. Asar, No. 10-5263, 2012
WL 1593034, at *2 (4th Cir. May 8, 2012) (unpublished).
has filed three motions to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. On June 14, 2012,
Asar filed his first § 2255 motion and raised claims
regarding his status as an armed career criminal, ineffective
assistance of counsel, and the rule of lenity. Asar,
Cr. No. 7-10-cr-00429-BHH (First § 2255 Mot., ECF No.
83). His motion was denied on October 10, 2012. Id.
(Oct. 10, 2012 Order, ECF No. 107). Asar appealed, and the
Fourth Circuit dismissed his appeal on April 1, 2013.
United States v. Asar, No. 12-7925, 2013 WL 1287403,
at *1 (4th Cir. Apr. 1, 2013) (unpublished).
receiving permission from the Fourth Circuit to file a second
or successive § 2255 motion, Asar filed his second
§ 2255 motion on May 6, 2016, and challenged his ACCA
sentencing enhancement based on Johnson and
Welch. Asar, Cr. No. 7:10-cr-00429-BHH
(Second § 2255 Mot., ECF No. 133). On July 19, 2017,
Asar's second § 2255 motion was denied because three
of his prior convictions, two South Carolina convictions for
pointing and presenting a firearm and one conviction for
armed robbery, still qualified as valid predicates to enhance
his sentence under the ACCA. Id. (July 19, 2017
Order, ECF No. 153). Asar appealed, and his appeal was
dismissed on November 28, 2017. United States v.
Asar, 704 Fed.Appx. 280, 281 (4th Cir. Nov. 28, 2017)
(unpublished). On March 28, 2019, Asar filed his third §
2255 motion, which remains pending. Asar, Cr. No.
7:10-cr-00429-BHH (Third § 2255 Mot., ECF No. 187).
case, Asar alleges that his sentence was unconstitutionally
enhanced because his two state convictions for pointing and
presenting a firearm no longer qualify as valid predicate
offenses in light of Johnson. (§ 2241 Pet.,
generally, ECF No. 1.) However, to satisfy
Wheeler's savings clause test, the change in
substantive law that undermines a sentence must occur after
the petitioner's direct appeal and first § 2255
motion. 886 F.3d at 429. Asar did not object to the
magistrate judge's conclusion that Asar's second
§ 2255 motion should be treated as his first for
purposes of the Wheeler analysis because Asar's
first and second § 2255 petitions were both addressed on
the merits. Asar's second § 2255 motion was filed
May 6, 2016. Asar, Cr. No. 7:10-cr-00429-BHH (Second
§ 2255 Mot., ECF No. 133). Johnson was decided
on June 26, 2015, and was held to apply retroactively on
collateral review by Welch on April 18, 2016.
Johnson, 135 S.Ct. at 2551; Welch, 136
S.Ct. at 1257. Therefore, the change in substantive law that
Asar alleges invalidates his sentence did not occur
subsequent to his direct appeal and first § 2255
motion. See Wheeler, 886 F.3d at 429.
Because Asar has failed to allege a change in substantive law
that occurred after his direct appeal and first § 2255
motion, he cannot satisfy the second prong of the
Wheeler test. Thus, this objection is without merit.
on the foregoing, the court finds that Asar cannot challenge
his sentence under § 2241 because § 2255 is not
inadequate or ineffective to test the legality of his
sentence. Accordingly, the court adopts Magistrate Judge
McDonald's Report and Recommendation and incorporates it
that Asar's petition, docket number 1, is dismissed
without prejudice and without requiring the ...