United States District Court, D. South Carolina
OPINION AND ORDER
H. HENDRICKS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Petitioner Jonathan
Jordan's (“Petitioner”) pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. In accordance with 28 U.S.C. 636(b)(1)(B) and
Local Rule 73.02(B)(2)(c) (D.S.C.), the matter was referred
to a United States Magistrate Judge for a Report and
Recommendation on Respondent Warden Travis Bragg's
(“Respondent”) motion to dismiss (ECF No. 13). On
January 28, 2019, Magistrate Judge Bristow Marchant issued a
Report and Recommendation (“Report”), analyzing
the issues and recommending that the Court grant
Respondent's motion to dismiss (ECF No. 13) and dismiss
the petition for writ of habeas corpus (ECF No. 1).
(See ECF No. 20 at 11.) Petitioner filed objections
(ECF No. 22) to the Report, and the matter is ripe for
review. The Report sets forth in detail the relevant facts
and standards of law, and the Court incorporates them here,
summarizing below only in relevant part.
filed a pro se petition for a writ of habeas corpus
pursuant to § 2241 on July 12, 2018. (ECF No. 1.)
Petitioner was sentenced on March 2, 2010 to a term of
imprisonment for 295 months, which term fell in the middle of
the then-applicable U.S. Sentencing Guidelines range as
calculated pursuant to the career offender enhancement.
(See Id. at 7.) In the petition, he asserts that,
under the Fourth Circuit's holdings in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) and Miller
v. United States, 735 F.3d 141 (4th Cir. 2013), he no
longer has two predicate offenses that qualify him as a
career offender because the maximum sentences for the drug
offenses used to enhance his sentence were less than one
year. (See ECF No. 1-1 at 3.) Petitioner claims that
the continuing application of the career offender enhancement
will result in a miscarriage of justice that warrants relief
under the savings clause of 28 U.S.C. § 2255. (ECF No. 1
at 6-7.) Petitioner has previously challenged his
classification as a career offender, including his theory of
relief based on Simmons, through the vehicle of a
motion to vacate, set aside, or correct the sentence pursuant
to § 2255 and the vehicle of a prior § 2241
petition. (See ECF No. 20 at 4 (summarizing
Petitioner's previous collateral attacks on his
sentence).) The Court also notes that Petitioner's
Simmons-based challenge to his sentence is likely
moot at this point, given that the U.S. District Court for
the Eastern District of North Carolina, Chief Judge Terrence
W. Boyle presiding, recently granted Petitioner's motion
for reduction of sentence pursuant to Section 404 of the
First Step Act, and reduced Petitioner's sentence to 180
months. See ECF Nos. 232 & 233, U.S. v.
Jordan, No. 5:09-cr-00104-BO-2 (E.D. N.C. Aug. 29,
2019). Nevertheless, for the sake of completeness the Court
will address Petitioner's objections to the Report.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
only of those portions of the Report to which a specific
objection is made, and the Court may accept, reject, or
modify, in whole or in part, the recommendations of the
Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1). In the
absence of specific objections, the Court reviews the matter
only for clear error. 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.'”) (quoting Fed.R.Civ.P.
72 advisory committee's note).
Report, Magistrate Judge Marchant explains that the instant
§ 2241 petition is subject to dismissal because
Petitioner's claim is barred by his plea agreement
wherein he waived certain rights to appeal his sentence.
(See ECF No. 20 at 6-9.) The Magistrate Judge
correctly notes that the Fourth Circuit has held that the
type of waiver at issue in this case is enforceable and
precludes a collateral attack on Petitioner's sentence.
See U.S. v. Lemaster, 403 F.3d 216, 220 (4th Cir.
2005) (holding that “a criminal defendant may waive his
right to attack his conviction and sentence collaterally, so
long as the waiver is knowing and voluntary”).
Moreover, the Fourth Circuit has also stated that
“claims regarding the application of Simmons
fall within the scope of [a] valid appeal waiver.” U.S.
v. Copeland, 707 F.3d 522, 529-30 (4th Cir. 2013).
After reviewing the relevant portions of the record
pertaining to Petitioner's guilty plea and plea
agreement, the Magistrate Judge concluded there was no
evidence to indicate that Petitioner's plea was
unkowningly or involuntarily entered, that the appeal waiver
bars the instant § 2241 petition, and that the petition
should accordingly be dismissed. (See ECF No. 20 at
objects to the Magistrate Judge's conclusions regarding
the appellate waiver provision and advances his own
construction of the appellate waiver language, which would
purportedly allow him to challenge his sentence as being
“in excess of the applicable advisory Guideline range
that is established at sentencing.” (See ECF
No. 22 at 3-5.) This objection is based on a misunderstanding
of the import of the operative language in the appellate
waiver. The advisory Guideline range reflected in
Petitioner's presentence report was 262 to 327 months.
Even assuming the applicability of Simmons and that
Petitioner could satisfy the savings clause of § 2255,
the 295-month term of incarceration adjudicated was not in
excess of the Guideline range established at the time of
sentencing. The objection is overruled.
next objects by arguing that the appellate waiver in his plea
agreement cannot be enforced, despite controlling authority
embodied in the Fourth Circuit's holding in
Copeland, because continued enforcement of a
sentence including a career offender enhancement in his case
will result in a miscarriage of justice. (See ECF
No. 22 at 5-6.) The Court commends Petitioner for his
on-point, passionate arguments in this regard, wherein
Petitioner notes the cognitive dissonance created by a
situation in which the Government, by way of an appellate
waiver, preemptively forecloses a petitioner from rectifying
a later-developed sentencing inequity-namely, disparate
impact of the career offender designation on past and present
defendants due to Simmons-created by subsequent
Fourth Circuit rulings. (See Id. at 5-6.)
Petitioners arguments carry logical weight. However, this
Court is bound by Fourth Circuit authority that precludes
relief in this precise circumstance. See U.S. v.
Foote, 784 F.3d 931, 940-42 (4th Cir. 2015) (holding
that, where a sentence is within statutory limits and the
collateral challenge involves no substantiated claim of
actual innocence, an enhanced sentence based on a career
offender designation that is subsequently nullified does not
constitute a fundamental defect that results in a miscarriage
of justice, thereby creating the exceptional circumstances
necessary to require habeas relief). Accordingly, the
objection is overruled.
Magistrate Judge next concluded, even assuming arguendo that
Petitioner's claims were not barred by the appellate
waiver, that dismissal is warranted because Petitioner is
unable to satisfy the § 2255 savings clause and this
Court lacks jurisdiction to consider the petition.
(See ECF No. 20 at 9-11.) “[I]t is well
established that defendants convicted in federal court are
obliged to seek habeas relief from their convictions and
sentences through § 2255.” Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc)).
However, § 2255 contains a “savings clause”
that allows federal prisoners to proceed under § 2241
when a motion under § 2255 would prove “inadequate
or ineffective” to test the legality of the
detention. In re Vial, 115 F.3d at 1194.
Importantly, “the remedy afforded by § 2255 is not
rendered inadequate or ineffective merely because an
individual has been unable to obtain relief under that
provision . . . or because an individual is procedurally
barred from filing a § 2255 motion . . . .”
Id. at n.5.
Fourth Circuit has identified circumstances when a federal
prisoner may use a § 2241 petition to contest his
sentence. Specifically, § 2255 is inadequate or
(1) at the time of the 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.
U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Here, Magistrate Judge Marchant determined that Petitioner
cannot meet the fourth prong of the Wheeler test
because, in the Fourth Circuit, a career offender designation
that is nullified by subsequent caselaw does not present an