United States District Court, D. South Carolina, Charleston Division
Anthony M. Smalls, Petitioner,
Warden of FCI-Edgefield, 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 Mary
Gordon Baker for pre-trial proceedings and a Report and
Recommendation (“Report”). On February 26, 2019,
Respondent filed a motion to dismiss, and Petitioner filed a
response in opposition. ECF Nos. 19, 22. On August 13, 2019,
the Magistrate Judge issued a Report recommending that the
motion to dismiss be granted and the Petition be dismissed
without prejudice. ECF No. 24. 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. 28.
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 his sentence enhancement
under 21 U.S.C. § 851 is invalid pursuant to Mathis
v. United States, 136 S.Ct. 2243 (2016). He requests
that this case be held in abeyance until the United States
Supreme Court decides Shuler v. United States, which
he contends may impact the outcome of this case.
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 prong.
Petitioner relies on Mathis and United States v.
Rhodes, 736 Fed.Appx. 375 (4th Cir. 2018) (per curiam).
As explained in detail by the Magistrate Judge, the Fourth
Circuit Court of Appeals has not held that either
Mathis or Rhodes applies retroactively on
collateral review. See, e.g., Davis v. Andrews, 727
Fed.Appx. 782, 783 (4th Cir. 2018) (per curiam); Brooks
v. Bragg, 735 Fed.Appx. 108, 109 (4th Cir. 2018) (per
curiam). Thus, Petitioner fails to meet the savings clause.
Accordingly, this Court lacks subject matter jurisdiction
over the Petition.
the Court adopts the Report of the Magistrate Judge. The
motion to dismiss  is GRANTED and the Petition is
DISMISSED without prejudice.
governing law provides that:
(c) (2) A certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial
of a constitutional right.
(c) (3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard
by demonstrating that reasonable jurists would find this
Court’s assessment of his constitutional claims
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the ...