United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner's pro se
application for writ of habeas corpus filed in this court
pursuant to 28 U.S.C. § 2241, arguing a change in law
renders his sentence, as enhanced due to the “death
results” sentencing guideline, infirm. ECF No. 1. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(c), DSC, this matter was referred to United
States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation
20, 2018, Respondent filed a return and a motion to dismiss,
arguing the Petition presents a claim not cognizable on
collateral review and is based on a clarifying amendment to
the Sentencing Guidelines not made retroactive. ECF Nos. 12,
13. Petitioner filed a response in opposition on July 2,
2018, and a supplement on July 16, 2018. ECF Nos. 16, 18. The
court thereafter adopted a Report of the Magistrate Judge,
appointed the Federal Public Defender to represent Petitioner
for the remainder of his case, denied Respondent's motion
to dismiss without prejudice, and ordered further briefing to
address the issues raised in the Report, including
application of United States v. Wheeler, 886 F.3d
415 (4th Cir. 2018), timeliness under § 2241,
retroactivity of Burrage v. United States, 571 U.S.
204 (2014), application of the mandatory guidelines,
development of the record, and any other arguments the
parties wished the court to consider. ECF Nos. 19 (Report),
filed a second motion to dismiss on November 9, 2018. ECF No.
33. Petitioner filed a response in opposition (ECF No. 37),
and Respondent filed a Reply (ECF No. 42). The Magistrate
Judge filed a Report on January 23, 2019, recommending the
Petition be dismissed for lack of jurisdiction or, in the
alternative, that summary judgment for Respondent be granted
based on waiver. ECF No. 45. Petitioner thereafter filed a
motion to stay these proceedings pending the filing and
resolution of a motion pursuant to the First Step Act. ECF
No. 49. The court granted the stay. ECF No. 50. On May 9,
2019, the court lifted the stay after resolution of the First
Step Act motion, and gave Petitioner until May 24 to file
objections to the Report filed January 23. ECF No. 51.
Petitioner filed objections on May 24, 2019 (ECF No. 53), and
Respondent filed a reply (after an extension) on June 21,
2019 (ECF No. 56).
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b). The
court reviews the Report only for clear error in the absence
of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, a
district court need not conduct a de novo review, but instead
must only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation.”) (citation omitted).
Report recommends dismissal because Petitioner is unable to
meet the test required to bring his claim under the savings
clause of § 2255(e), as the “death
enhancement” applied to his case pursuant to Sentencing
Guidelines and not by statute. ECF No. 45 at 3. In the
alternative, the Magistrate Judge recommends the Petition be
denied because Petitioner waived his argument that the
Government must prove the drug he distributed was the but-for
cause of decedent's death. Id. at 5.
objected to the Report, arguing Burrage v. United
States, 571 U.S. 204 (2014) should not only apply to the
statutory death enhancement, but also the enhancement in the
Sentencing Guidelines, and that the Petition meets all
requirements of the savings clause. ECF No. 53 at 1-6.
Petitioner also argues he did not waive his claim under
Burrage, but waived a similar claim, and that he could not
have waived a Burrage claim because it did not exist at the
time of sentencing. Id. at 8-9. Finally, he argues
“valid waivers can be excused by intervening
developments in the law.” Id. at 9.
argues the Report correctly found Petitioner cannot show a
change in settled substantial law because Burrage does not
apply to the Sentencing Guidelines. ECF No. 56 at 1-2. It
also argues Petitioner waived his claim and such waiver
should not be excused. Id. at 3-7. a. Savings Clause
and Burrage Under Fourth Circuit law, a prisoner may
challenge his sentence through a § 2241 petition if:
(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.
States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
The court agrees with the Magistrate Judge Petitioner cannot
meet the second requirement of Wheeler: that a change in
settled substantive law applied to him and was deemed to
apply retroactively on collateral review.
contends Burrage changed the settled law applicable to his
case. However, Petitioner's sentence was enhanced based
on the “death enhancement” in Section 2D1.1(a)(1)
of the Sentencing Guidelines, not the statutory death
enhancement in 21 U.S.C § 841, as discussed in Burrage.
Therefore, the court agrees with the Report that invocation
of Burrage is premature because Burrage has not been held to
apply to the Sentencing Guidelines. Therefore, Petitioner
cannot meet the savings clause of § 2255(e) because the
change in substantive law has no impact.
argues the cases cited in support of this finding by the
Report were decided before the Fourth Circuit's opinion
in Wheeler, and thus are inapposite to this case. The court
in Perez-Colon v. O'Brien, C.A. No. 1:14-cv-119,
2016 WL 7168186, at *6 (N.D. W.Va. Dec. 8, 2016), found
Burrage “does not apply here, where the district court
applied a sentencing enhancement, not a finding under §
841(b)(1)(C).” In Powell v. United States,
C.A. No. 3:09CV2141, 2014 WL 5092762, at *2 (D. Conn. Oct.
10, 2014), the court held “[u]nlike the sentence
enhancement statute at issue in Burrage, the murder
cross-reference guideline at issue here is a sentencing factor
which may be found by a sentencing judge by a preponderance
of the evidence.” However, as Respondent noted,
Perez-Colon was appealed, and the Fourth Circuit dismissed
the § 2241 petition because that defendant “failed
to satisfy the requirements of the savings clause of 28
U.S.C. § 2255(e) (2012).” Perez-Colon ...