United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
petitioner, Larry Michael Slusser, a self-represented
prisoner, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. This matter is before the
court pursuant to 28 U.S.C. § 636(b) and Local Civil
Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in
accordance with applicable law, the court concludes that it
should be summarily dismissed for lack of jurisdiction.
Factual and Procedural Background
is a federal prisoner housed in the Federal Correctional
Institution in Edgefield, South Carolina. In 2011, Petitioner
was sentenced in the United States District Court for the
Eastern District of Tennessee to 180 months' imprisonment
on a charge of felon in possession of a firearm. (Pet., ECF
No. 1-1 at 1-2.) Petitioner's sentence was enhanced under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924, based on three prior Tennessee state court
convictions, including a 1999 conviction for aggravated
assault. (Id. at 2.) Petitioner filed a motion to
vacate, set aside, or correct the sentence pursuant to 28
U.S.C. § 2255 in 2012 that was denied. (Id. at
2016, the United States Court of Appeals for the Sixth
Circuit authorized Petitioner to file a second § 2255
motion, based on Petitioner's argument that the Supreme
Court's decision in Johnson invalidated the
use of his 1999 Tennessee conviction for aggravated assault
to enhance his sentence under the ACCA. (Id. at 3.)
However, the Eastern District of Tennessee found that at
least three of Petitioner's other prior convictions
qualified as predicate offenses under the ACCA independent of
the residual clause and denied relief. (Id. at 4.)
The Sixth Circuit refused to review the merits of the
district court's decision, finding that Petitioner waived
his right to appeal. (Id. at 8.)
argues now that, pursuant to United States v.
Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), this court
should review Petitioner's argument that he is entitled
to resentencing because his 1999 aggravated assault
conviction no longer qualifies as a predicate offense under
the ACCA. Notably, Petitioner concedes that the Eastern
District of Tennessee heard this issue pursuant to the
gatekeeping provisions of § 2255(h)(2), but he contends
that because the Sixth Circuit dismissed his appeal on a
procedural issue rather than the merits of his claim, this
court should now address this issue pursuant to §
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se petition
filed in this case pursuant to the Rules Governing §
2254 Cases,  28 U.S.C. § 2254; the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214;
and in light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc);
Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
court is required to liberally construe pro se
pleadings, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016). Nonetheless, 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 (4th
Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009) (outlining pleading requirements under Rule 8
of the Federal Rules of Civil Procedure for “all civil
petitioner cannot challenge his federal conviction and
sentence through § 2241 unless he can show under the
“savings clause” of § 2255(e) that a §
2255 motion is “inadequate or ineffective to test the
legality of his detention.” See 28 U.S.C.
§ 2255(e); see also Rice v. Rivera, 617 F.3d
802, 807 (4th Cir. 2010) (providing that if a federal
prisoner brings a § 2241 petition that does not fall
within the scope of the savings clause, the district court
must dismiss the unauthorized habeas petition for lack of
jurisdiction). The United States Court of Appeals for the
Fourth Circuit has held that a petitioner must establish the
following criteria to demonstrate that a § 2255 motion
is inadequate or ineffective to test the legality of a
(1) [A]t 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 ...