United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
se Petitioner, Ronnie Lynn Fowler, an inmate at
FCI-Bennettsville, brings this application for writ of habeas
corpus (Petition) pursuant to 28 U.S.C. § 2241. Under
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 procedural provisions of the Rules
Governing Section 2254 Proceedings in the United States
District Court,  28 U.S.C. § 2254; the Anti-Terrorism
and Effective Death Penalty Act (AEDPA) of 1996; 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): and Todd v.
Baskerville, 712F.2d70(4thCir. 1983).
petitions are held to a less stringent standard than those
drafted by attorneys, and a court is charged with liberally
construing a petition filed by a pro se litigant to allow for
the development of a potentially meritorious case. See
Erickson v. Pardus, 551 U.S. 89 (2007); Hughes
v. Rowe, 449 U.S. 5.9 (19801: Fine v. City of New
York, 529 F.2d 70. 74 (2d Cir. 1975). However, even when
considered under this less stringent standard, for the
reasons set forth hereinbelow the petition submitted in the
instant case is subject to summary dismissal. The requirement
of liberal construction does not mean that this Court can
ignore a clear failure in the pleading to allege facts which
set forth a claim currently cognizable in a federal district
court. See Weller v. Dep't of Soc. Servs., 901
F.2d 387 (4th Cir. 1990). Such is the case here.
was charged in the Northern District of Texas with five
counts (Counts one, two, three, five, and seven) of
Obstruction of Commerce by Robbery under 18 U.S.C. §
1951, and three counts (Counts four, six, and eight) of use
and carrying a firearm in a crime of violence pursuant to 18
U.S.C. § 924(c). He was convicted in 1992 on all five
counts of robbery under the Hobbs Act, 18 U.S.C. § 1951,
and all three counts of using and carrying a firearm in
relation to a crime of violence under 18 U.S.C. §
924(c). He was originally sentenced to 627 months in prison,
but the sentence was later reduced to 540 months and one day.
See Fowler v. United States, No. 4:92-CR-177-Y
(N.D.Tex.). He appealed the original sentence to the
United States Court of Appeals for the Fifth Circuit, which
affirmed the judgment of the district court. United
States v. Fowler, 20 F.3d 466, 1994 WL 121940 (5th Cir.
1994). Petitioner filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255, which the
district court denied on June 6, 2018. See Fowler v.
United States, Nos. 4:92-CR-177-Y, 4:16-CV-596-Y
asserts that because the Fourth Circuit, in Simms v.
United States, 914 F.3d 229 (4th Cir. 2019), declared
that the residual clause of 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague, his Hobbs Act (18 U.S.C. §
1951) robbery convictions no longer qualify as crimes of
violence under the force clause such that he should be
resentenced absent any enhancement pursuant to § 924.
Petitioner also points to a case from the Fifth Circuit Court
of Appeals, on appeal at the time he filed his Petition,
which the United States Supreme Court has now held that
§ 924(c)(3)(B) is unconstitutional. United States v.
Davis, 139 S.Ct. 2319 (2019).
action is subject to summary dismissal because generally
"it is well established that defendants convicted in
federal court are obliged to seek habeas relief from their
convictions and sentences through § 2255," not
through a petition filed pursuant to § 2241. Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). While a
federal prisoner may file a § 2241 petition challenging
his conviction if § 2255 is "inadequate or
ineffective to test the legality of [his] detention;"
In re Jones, 226 F.3d 328, 333 (4th Cir. 2000)
(internal quotation marks omitted); see 28 U.S.C. §
2255(e); a petitioner must establish the following to
demonstrate that a § 2255 motion is inadequate or
ineffective to test the legality of an inmate's
(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.
United States v. Wheeler, 886 F.3d 415, 427 (4th
Cir. 2018)(citing Jones, 226 F.3d at 333-34).
noted above, the United States Supreme Court recently found
that the residual clause, § 924(c)(3)(B), is
unconstitutional. United States v. Davis, 139 S.Ct.
2319 (2019). Thus, even assuming Petitioner can meet the
first two elements of the In re Jones test, he
cannot meet the third element because the decision in
Davis announced a new rule of constitutional law.
Therefore, Petitioner is foreclosed from bringing a §
2241 Petition challenging the legality of his conviction(s).
Rather, Petitioner's remedy, if any, is to seek
permission to file a § 2255 motion in the court in which
he was sentenced by filing a motion for leave to file a
successive § 2255 motion in the United States Court of
Appeals for the Fifth Circuit. See 28 U.S.C. § 2255(h).
Therefore, the Petition should be dismissed because this
court lacks jurisdiction. See Wheeler, 886 F.3d at
426 [holding that the failure to meet the requirements of the
savings clause is a jurisdictional defect that may not be
far as Petitioner challenges the legality of his sentences
imposed as to his convictions under 18 U.S.C. § 924, the
Fourth Circuit held in Wheeler that § 2255 is
inadequate or ineffective to test the legality of a sentence
(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 at 429 (citing
In re Jones, 226 F.3d at 333-34). Petitioner argues
that he meets the requirements of the Wheeler test
based on a change in the substantive law based on the
decision in Simms. as discussed above. However,
Simms is a decision of the Fourth Circuit Court of
Appeals, and a change in the substantive law that causes a
petitioner's sentence to be unlawful must arise from the
United States Supreme Court or the circuit in which the
petitioner was convicted, which here is the Fifth Circuit.
See Van Horrelbeke v. United States, No.
0-08-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8,
2010)[holding that in applying the second prong of the
savings clause test, "the substantive law relevant to a
§ 2241 petition is that of the circuit in which the
petitioner was convicted"] citing Chaney v.
O'Brien, No. 7:07CV00121, 2007 WL 1189641, at *1
(W.D. Va. Apr. 23, 2007), aff'd, 241 Fed.Appx.
977 (4th Cir. 2007); Eames v. Jones, 793
F.Supp.2d 747, 750 (E.D. N.C. 2011) [finding that the law of
the circuit in which petitioner was convicted should apply to
§ 2241 proceedings held in a different circuit].
instead, Petitioner is now arguing that based on the Supreme
Court's recent decision in Davis he meets the
four-part test to challenge the legality of his sentence(s)
under the Wheeler test, he cannot meet the third
prong as he cannot show that he is unable to meet the
gatekeeping provisions of § 2255(h)(2)["A second or
successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to
contain- .... (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable."]. Here,
Davis announced a new rule of constitutional law and
the Fifth Circuit recently held that Davis announced
a new substantive rule of constitutional law applicable
retroactively to cases on collateral review. United
States v. Reece, ___ F.3d ___ 2019 WL 4252238
(5th Cir. Sept. 9, 2019). Therefore, Petitioner cannot show
that he meets the Wheeler test. As a result, this
Court lacks jurisdiction. ...