United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES UNITED STATES MAGISTRATE JUDGE.
Tolbert (“Petitioner”), proceeding pro se, is an
inmate at Federal Correctional Institution Estill, in the
custody of the Bureau of Prisons. He filed this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned
is authorized to review such petitions for relief and submit
findings and recommendations to the district judge. For the
following reasons, the undersigned recommends the district
judge dismiss the petition in this case without requiring the
respondent to file an answer.
Factual and Procedural Background
February 24, 2014, Petitioner pled guilty to one count of
possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) in the United States
District Court for the Middle District of Pennsylvania
(“Sentencing Court”). See ECF No. 126,
United States v. Tolbert, Crim. No. 3:14-19-ARC-1
(M.D. Pa. 2014) (“Sentencing
Docket”). On June 24, 2014, pursuant to a written
plea agreement, the Sentencing Court sentenced Petitioner to
151 months' imprisonment. See ECF Nos. 122, 134,
Sentencing Docket. Petitioner alleges his sentence included a
two-level career offender enhancement under United States
Sentencing Guidelines § 4B1.1. [ECF No. 1-2 at 4].
Petitioner did not challenge his conviction or sentence
through a direct appeal or motion under 28 U.S.C. §
asserts he is actually innocent of his career offender
enhancement in light of Mathis v. United States, 136
S.Ct. 2243 (2016), and seeks resentencing.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of this petition pursuant to the
Rules Governing Section 2254 Proceedings for the United
States District Court,  the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, and other habeas corpus statutes.
Pro se complaints are held to a less stringent standard than
those drafted by attorneys. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged
with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89,
94 (2007). In evaluating a pro se complaint, the
plaintiff's allegations are assumed to be true. Fine
v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The
mandated liberal construction afforded to pro se pleadings
means if the court can reasonably read the pleadings to state
a valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean the court can ignore a clear failure in the
pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
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)). In contrast, a petition filed under § 2241 is
typically used to challenge the manner in which a sentence is
executed. See In re Vial, 115 F.3d at 1194 n.5. A
petitioner cannot challenge his federal conviction and
sentence under § 2241 unless he can satisfy the §
2255 savings clause, which states:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
28 U.S.C. § 2255(e); see also Rice, 617 F.3d at
807 (finding courts lack jurisdiction over § 2241
petition outside savings clause).
Fourth Circuit, § 2255 is inadequate and ineffective to
test the legality of a 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 ...