United States District Court, D. South Carolina, Aiken Division
Derrick R. Parks, Petitioner,
Warden Travis Bragg, Respondent.
C. COGGINS, JR., UNITED STATES DISTRICT JUDGE
proceeding pro se, is seeking habeas corpus relief pursuant
to 28 U.S.C. § 2241. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this
matter was referred to United States Magistrate Judge Shiva
V. Hodges for pre-trial proceedings and a Report and
Recommendation (“Report”). On August 8, 2019, the
Magistrate Judge issued a Report recommending that the
Petition be dismissed without prejudice and without requiring
Respondent to file a Return. ECF No. 14. The Magistrate Judge
advised Petitioner of the procedures and requirements for
filing objections to the Report and the serious consequences
if he failed to do so. Petitioner filed objections to the
Report. ECF No. 18.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of 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.” (citation omitted)).
Magistrate Judge recommends dismissal because this Court
lacks jurisdiction over the Petition. She found that
Petitioner failed to meet the savings clause of 28 U.S.C.
§ 2255(e). Petitioner objects and argues that his
Petition should be allowed because he is factually innocent
of his 28 U.S.C. § 851 enhancement in light of
United States v. Simmons, 649 F.3d 237 (4th Cir.
order to challenge a federal sentence or conviction through
§ 2241, a petitioner must 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). The
Fourth Circuit Court of Appeals has held a § 2255 motion
is inadequate or ineffective to test the legality of a
prisoner's sentence when:
(1) at 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 retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018). Here, Petitioner fails to meet the second
explained in detail by the Magistrate Judge, the Fourth
Circuit Court of Appeals decided Simmons in 2011 and
deemed it retroactive on August 21, 2013, in Miller v.
United States, 735 F.3d 141 (4th Cir. 2013). The
Sentencing Court issued its ruling on Petitioner's §
2255 motion after the Fourth Circuit's ruling in
Miller. The Sentencing Court considered his
Simmons-based claim on the merits and found that he
was not entitled to relief because it has not imposed the
enhanced sentence under the Controlled Substances Act. After
an independent review of the record, the Fourth Circuit
declined to issue a certificate of appealability with respect
to Petitioner's § 2255 petition.
Petitioner cannot show that the substantive law has changed
since consideration of his first § 2255 motion. His
allegations fail to meet the test articulated in
Wheeler; accordingly, this Court lacks subject
matter jurisdiction over the Petition.
the Court adopts the Report of the Magistrate Judge. The
Petition is DISMISSED without prejudice and
without requiring the Respondent to file a Return.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...