United States District Court, D. South Carolina
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 Jacquelyn D. Austin, made
in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina. Chester Lee
Barnes, Jr. (“Barnes”), a federal prisoner
proceeding with counsel, filed a petition seeking habeas
corpus relief pursuant to 28 U.S.C. § 2241. In her
Report and Recommendation, Magistrate Judge Austin recommends
granting Respondent's motion to dismiss and dismissing
Barnes' petition. After review and for the reasons below,
the court adopts the Report and Recommendation, grants
Respondent's motion to dismiss, and dismisses Barnes'
Factual and Procedural History
is a federal prisoner incarcerated at FCI-Bennettsville. In
2008, Barnes pled guilty to possession with intent to
distribute more than five grams of cocaine base in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A). United States v. Barnes,
Cr. No. 5:07-351-BO-1 (E.D. N.C. 2008). Barnes was
sentenced to consecutive terms of 260 months'
imprisonment for the drug trafficking offense and 60
months' imprisonment for the firearm offense.
Id. Barnes received a career offender sentencing
enhancement under United States Sentencing Guideline
(“Guidelines”) § 4B1.1 based on a 2002 North
Carolina conviction for possession with intent to sell or
deliver marijuana and a 2003 North Carolina conviction for
attempted assault. (§ 2241 Pet. 8, ECF No. 1.)
did not appeal his conviction and sentence. On February 9,
2012, Barnes filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255, which was
denied as untimely. (Mot. Dismiss Attach. 1 (Mem. Supp. Mot.
Dismiss 3-4), ECF No. 44-1.) The United States Court of
Appeals for the Fourth Circuit affirmed. United States v.
Barnes, No. 12-7853, 2013 WL 518643 (4th Cir. 2013) (per
curiam) (unpublished). Barnes filed his first § 2241
petition on July 16, 2015, which was denied on July 28, 2016.
Barnes v. Bragg, C.A. No. 8:15-2842-HMH-JDA, 2016 WL
4040295 (D.S.C. July 28, 2016), aff'd 696 Fed.
App'x 629 (4th Cir. 2017) (per curiam) (unpublished).
filed the instant § 2241 petition on May 24,
2018. (§ 2241 Pet., generally, ECF No. 1.)
Barnes argues that, in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), he
should be resentenced without the career offender enhancement
because his prior 2002 North Carolina drug conviction no
longer qualifies as a predicate offense for the career
offender enhancement in § 4B1.1. (Id., ECF No.
1.) Respondent filed his first motion to dismiss on July 19,
2018. (Mot. Dismiss, ECF No. 9.) The magistrate judge issued
a Report and Recommendation on October 3, 2018. (R&R, ECF
No. 14.) The court determined that more information was
needed. Therefore, the court declined to adopt the Report and
Recommendation, remanded the action to the magistrate judge
for supplemental briefing, and appointed a federal public
defender to represent Barnes. (Nov. 20, 2019 Order, ECF No.
21.) The parties have now filed supplemental briefs and
provided the court with the requested documents.
6, 2019, the Respondent filed the second motion to dismiss.
(Second Mot. Dismiss, ECF No. 44.) On May 20, 2019, Barnes
filed his response in opposition. (Resp. Opp'n Second
Mot. Dismiss, ECF No. 46.) On July 16, 2019, Magistrate Judge
Austin issued the Report and Recommendation. (R&R,
generally, ECF No. 49.) Magistrate Judge Austin recommends
granting the Respondent's motion to dismiss and
dismissing Barnes' petition because Barnes cannot satisfy
the § 2255(e) savings clause test set forth in
United States v. Wheeler, 886 F.3d 415 (4th Cir.
2018), in order to proceed under § 2241. (Id.,
ECF No. 49.) Barnes filed objections to the Report and
Recommendation on July 25, 2019. (Objs., ECF No. 50.) This
matter is now ripe for review.
Discussion of the Law
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). Upon
review, some of Barnes objections are nonspecific, unrelated
to the dispositive portions of the magistrate judge's
Report and Recommendation, or merely restate his claims.
However, Barnes presents two specific objections. First,
Barnes argues that United States v. Foote, 784 F.3d
931 (4th Cir. 2015), was wrongly decided and should not
affect the court's analysis. (Objs. 1, ECF No. 50.)
Second, Barnes objects to the magistrate judge's
conclusion that he is not entitled to a writ of audita
querela. (Id. 7, ECF No. 50.)
first argues that Foote was wrongly decided and that
the magistrate judge failed to address this argument in the
Report and Recommendation. The Fourth Circuit has held that
Foote applies to § 2241 petitions that seek to
satisfy the savings clause test set forth in
Wheeler. See Lester v. Flournoy, 909 F.3d
708, 715 (4th Cir. 2018) (noting that “Foote
undoubtedly would bar [the petitioner's] petition had he
been sentenced under the advisory Guidelines”);
Kornegay v. Warden, FCI Butner, No. 13-7565, 2019 WL
258720, at *1 (4th Cir. Jan. 17, 2019) (per curiam)
(unpublished) (affirming district court's order denying
§ 2241 relief because petitioner “was sentenced
under the advisory Guidelines and Foote bars his
district courts in the Fourth Circuit have applied
Foote's holding in the “fundamental
defect” analysis under Wheeler in cases
involving career offender enhancements imposed under the
advisory Guidelines. See e.g., Ward v.
Joyner, C.A. No. 2:19-cv-244-RBH-MGB, 2019 WL 2552606,
at *2-3 (D.S.C. Feb. 26, 2019), adopted by C.A. No.
2:19-244-MGL, 2019 WL 2551944 (D.S.C. June 19, 2019)
(unpublished) (holding that misapplication of career offender
enhancement to advisory Guidelines range is not a fundamental
defect under Wheeler based on Lester and
Foote); Lee v. Andrews, No.
5:18-HC-2031-FL, 2018 WL 4924008, at *2 (E.D. N.C. Oct. 10,
2018) (holding that a career offender enhancement imposed
under advisory Guidelines that is later invalidated by a
subsequent change in law did not amount to a fundamental
defect under Wheeler and Foote); Mangum
v. Hollembaek, No. 5:16-HC-2293-FL, 2018 WL 4113346, at
*2 (E.D. N.C. Aug. 28, 2018) (examining a § 2241
petition alleging an erroneous sentence enhancement under
Simmons and holding that Foote prevented
the court from finding a fundamental defect in sentencing
under Wheeler's savings clause test). The Fourth
Circuit has consistently applied Foote to §
2241 petitions, and Foote remains the controlling
precedent on this issue. Condon v. Haley, 21
F.Supp.3d 572, 583 (D.S.C. 2014) (“[A] decision of a
circuit court, not overruled by the United States Supreme
Court, is controlling precedent for the district courts
within the circuit.”). Thus, Barnes' first
objection is without merit.
Barnes' objects to the magistrate judge's conclusion
that he is not entitled to a writ of audita querela. (Objs.
7, ECF No. 50.) “A writ of audita querela
‘is used to challenge a judgment that was correct at
the time rendered but which is rendered infirm by matters
which arise after its rendition.'” McCray v.
United States, Cr. No. 4:09-cr-00519-RBH, 2013 WL
1635572, at *1 (D.S.C. Apr. 16, 2013) (unpublished) (quoting
United States v. Sessoms, No. 12-7316, 2012 WL
5520311, at *1 (4th Cir. Nov. 15, 2012) (unpublished)).
However, “a writ of audita querela is not available to
a petitioner when other avenues of relief are available, such
as a motion to vacate under 28 U.S.C. § 2255.”
Sessoms, 2012 WL 5520311, at *1. Further, a
petitioner cannot proceed through a common law writ
“simply because his claim is procedurally barred by
restrictions on successive collateral attacks.”
United States v. Wilson, 753 Fed. App'x 173,
173-74 (4th Cir. Feb. 19, 2019) (unpublished).
action, Barnes is challenging the legality of his sentence.
Barnes previously challenged his sentence in a § 2255
motion and a § 2241 petition. Thus, even if Barnes is
procedurally barred from filing a second or successive §
2255 motion, there is no gap in postconviction remedies that
would render a writ of audita querela appropriate. See
United States v. Gamboa, 608 F.3d 492, 495 (9th Cir.
2010) (“[T]he statutory limits on . . . successive
habeas petitions do not create a ‘gap' in the
post-conviction landscape that can be filled with the common
law writs.”). Accordingly, Barnes' second objection
is without merit.
on the foregoing, the court finds that Barnes cannot
challenge his sentence under § 2241 because § 2255
is not inadequate or ineffective to test the legality of his
detention, and this court lacks subject matter jurisdiction
over this petition. See Wheeler, 886 F.3d at 423.
Therefore, after a thorough review of the magistrate
judge's Report and Recommendation and the record in ...