United States District Court, D. South Carolina, Rock Hill 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 Paige J. Gossett, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Hakeem Willis
(“Willis”), a federal prisoner proceeding pro se,
filed a petition seeking habeas corpus relief pursuant to 28
U.S.C. § 2241. In her Report and Recommendation filed on
July 3, 2019, Magistrate Judge Gossett recommends dismissing
the petition without prejudice and without requiring the
Respondent to file an answer or return. (R&R 4, ECF No.
filed objections to the Report and Recommendation on July 10,
2019. (Objs., ECF No. 13.) 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 Willis' objections
are nonspecific, unrelated to the dispositive portions of the
magistrate judge's Report and Recommendation, or merely
restate his claims. However, the court was able to glean one
specific objection. Willis objects that the magistrate judge
incorrectly applied the savings clause test set forth in In
re Jones, 226 F.3d 328 (4th Cir. 2000). (Objs. 1-2, ECF No.
13.) Specifically, Willis argues that “Jones may be
read to encompass ‘certain serious sentencing
errors[.]'” (Id. 1, ECF No. 13.)
federal prisoner may challenge the legality of his conviction
or sentence under § 2241 if the prisoner can demonstrate
that § 2255 is inadequate or ineffective to test the
legality of the conviction or sentence. See In re
Jones, 226 F.3d at 333 (citing 28 U.S.C. § 2255).
To demonstrate that § 2255 is inadequate or ineffective
to test the legality of a conviction, the petitioner must
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
Id. at 333-34. If the petitioner cannot satisfy each
prong of the savings clause test, the court lacks subject
matter jurisdiction to consider the petition. United
States v. Wheeler, 886 F.3d 415, 423 (4th Cir. 2018).
objections, Willis objects to the magistrate judge's
application of Jones based on the United States
Court of Appeals for the Fourth Circuit's discussion of
Jones in Wheeler. (Objs. 1, ECF No. 13
(quoting Wheeler, 886 F.3d at 427).) In
Wheeler, the Fourth Circuit set forth an alternative
savings clause test to be applied to § 2241 petitions
that challenge an erroneous sentence. Wheeler, 886
F.3d at 429. However, Wheeler did not alter or
replace the Jones savings clause test for §
2241 challenges to convictions. Further, Willis is not
challenging an alleged error in his sentence. Instead, Willis
is challenging the legality of his 18 U.S.C. § 924(c)
conviction. (§ 2241 Pet. Attach. 1 (Mem. Supp. §
2241 Pet. 5), ECF No. 1-1.) Thus, Willis must be able to
satisfy the savings clause test set forth in Jones
in order to proceed under § 2255. Accordingly,
Willis' objection is without merit, and this court lacks
subject matter jurisdiction to consider his
Willis does not object to the magistrate judge's
conclusions (1) that Willis cannot satisfy the third prong of
the Jones test because the United States Supreme
Court's recent decision in United States v.
Davis, 139 S.Ct. 2319 (2019), is a new rule of
constitutional law, or (2) that the Fourth Circuit's
decision in United States v. Simms, 914 F.3d 229
(4th Cir. 2019), does not impact Willis' conviction
because he was convicted outside of the Fourth Circuit in the
United States District Court for the Eastern District of
Pennsylvania. (R&R 3-4, ECF No. 11.)
after a thorough review of the magistrate judge's Report
and Recommendation and the record in this case, the court
adopts Magistrate Judge Gossett's Report and
Recommendation and incorporates it herein.
therefore ORDERED that Willis' §
2241 petition, docket number 1, is dismissed without
prejudice and without requiring the Respondent to file an
answer or return.
IS SO ORDERED.
OF RIGHT TO APPEAL
Petitioner is hereby notified that he has the right to appeal
this order within sixty (60) days from the date hereof,
pursuant to Rules 3 and ...