United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin United States Magistrate Judge.
matter is before the Court on Respondent's second motion
to dismiss. [Doc. 44.] Petitioner is a federal prisoner,
proceeding pro se, who seeks relief under 28 U.S.C. §
2241. 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.,
this magistrate judge is authorized to review the instant
habeas Petition and submit findings and recommendations to
the District Court. Having carefully considered the
parties' submissions and the record in this case, the
Court recommends that Respondent's motion to dismiss be
to a guilty plea, Petitioner was sentenced in the United
States District Court for the Eastern District of North
Carolina on July 29, 2008 to 320 months' imprisonment for
violation of 21 U.S.C. § 841(a)(1)-intent to distribute
more than five grams of cocaine base-and violation of 18
U.S.C. § 924(c)(1)(A)-possession of a firearm in
furtherance of a drug trafficking crime. [E.D. N.C. No.
5:07-cr-00351-BO-1, Doc. 31]. Specifically, Petitioner was
sentenced to consecutive sentences of 260 months'
imprisonment for his conviction for possession with intent to
distribute more than five grams of cocaine and sixty
months' imprisonment for possession of a firearm in
furtherance of a drug trafficking crime. [Id.]
Petitioner did not file a direct appeal. On February 9, 2012,
Petitioner filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. [Id.,
Doc. 33.] The motion was dismissed as untimely.
[Id., Doc. 46.] Subsequently, the Fourth Circuit
Court of Appeals affirmed the dismissal of Petitioner's
§ 2255 motion. United States v. Barnes, 509
Fed.Appx. 279 (4th Cir. 2013) (unpublished decision).
16, 2015, Petitioner filed a § 2241 Petition in this
Court. [D.S.C. No. 8:15-cv-02842-HMH-JDA, Doc. 1.] Petitioner
challenged a career offender sentence enhancement imposed
under § 4B1.1 of the United States Sentencing Guidelines
and alleged that one of his prior convictions used to enhance
his sentence no longer qualifies as a predicate offense in
light of United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc). [D.S.C. No. 8:15-cv-02842-HMH-JDA, Doc.
1 at 6-10.] The Court dismissed the § 2241 Petition on
the basis that Petitioner failed to establish the
requirements of § 2255's savings clause because
“the savings clause does not apply to petitioners
challenging only their sentence.” Barnes v.
Bragg, 8:15-cv-02842-HMH-JDA, 2016 WL 4087360, at *4
(D.S.C. July 12, 2016), Report and Recommendation Adopted
by 2016 WL 4040295 (July 28, 2016), affirmed by
Barnes v. Bragg, 696 Fed.Appx. 629 (4th Cir. 2017).
filed this Petition for writ of habeas corpus on May 18,
2018. [Doc. 1.] In Petitioner's current
§ 2241 Petition, Petitioner again contends that he was
incorrectly sentenced as a career offender under the advisory
guidelines because at least some of his predicate state
convictions that qualified him as a career offender no longer
qualify as predicate offenses in light of Simmons.
[Doc. 1.] On July 19, 2018, Respondent filed a motion to
dismiss the Petition. [Doc. 9.] The next day, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised to respond to the motion and of the
possible consequences if he failed to adequately respond.
[Doc. 10.] Petitioner filed a response in opposition to the
motion to dismiss on August 20, 2018. [Doc. 12.]
October 3, 2018, the undersigned issued a Report and
Recommendation recommending that the Petition be dismissed on
the basis that he could not satisfy the savings clause test
under 28 U.S.C. § 2255(e), pursuant to United States
v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the
satisfaction of which was necessary in order for Petitioner
to proceed under § 2241. [Doc. 14.] Then, on November
20, 2018, the Honorable Henry M. Herlong, Jr., issued a
decision declining to adopt the Report and Recommendation,
After a thorough review of the record and the applicable law,
the court is unable to determine whether the jurisdictional
savings clause requirements of 28 U.S.C. § 2255(e) have
been satisfied without additional information. The court
cannot determine the applicability of Simmons on the
current record before the court. Specifically,
[Petitioner's] Presentence Investigation Report and the
guilty plea and sentencing hearings transcripts are currently
unavailable to conduct an analysis of whether the issues
raised by [Petitioner] present an error “sufficiently
grave to constitute a fundamental defect.” See
Wheeler, 886 F.3d at 429.
[Doc. 21.] Accordingly, Judge Herlong dismissed the motion to
dismiss without prejudice, appointed a federal public
defender to represent Petitioner, and ordered the parties to
file supplemental briefing
addressing (1) the application of Wheeler's
fundamental defect standard to sentences imposed under
advisory guidelines, (2) the distinction, if any, between a
“fundamental defect” in the context of a §
2255(a) motion and a § 2241 petition, (3) the
application of United States v. Foote, 784 F.3d 931
(4th Cir. 2015), to a § 2241 petition, (4) development
of the record, including the Presentence Investigation Report
and hearing transcripts, and (5) any other issues the parties
believe will aid the court.
[Doc. 21 at 2-3.] Judge Herlong also ordered the parties
“to file the Presentence Investigation Report under
seal and hearing transcripts as attachments to any
supplemental briefs.” [Id. at 2.]
April 5, 2019, Petitioner filed a supplement to his Petition.
[Doc. 41.] The supplement “acknowledges that it appears
[Foote] may control the outcome of this
matter” but argues that “Foote was
wrongly decided” and alternatively contends that
“[t]o the extent . . . Foote controls the
outcome of this [P]etition, Petitioner asserts a right to
relief in the alternative under a writ of audita
querela, as his sentence is illegal after
[Simmons].” [Doc. 41 at 1.] Petitioner
attached to the supplement his plea agreement, his
Presentence Investigation Report under seal, and a transcript
of his sentencing hearing. [Docs. 41-1; 41-2; 41-3; 42.] On May 6,
2019, Respondent filed a response in opposition to the
supplemental petition and a second motion to dismiss the
Petition. [Docs. 43; 44.] Petitioner filed a response
opposing the second motion to dismiss on May 20, 2019. [Doc.
46.] The motion is now ripe for review.