United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
se Petitioner, Elton Weiters, 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 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, 712 F.2d 70 (4th Cir.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
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v.
Beto, 405 U.S. 319 (1972); 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. Serve., 901
F.2d 387 (4th Cir. 1990).
29, 2016, in the United States District Court for the
District of South Carolina, Petitioner pleaded guilty,
pursuant to a written plea agreement, to possession with the
intent to distribute 28 grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(b)(1)(B) and 846, and
being a felon in possession of firearms and ammunition in
violation of 18 U.S.C. §§ 922(g) and 924(a)(2). On
January 30, 2017, he was sentenced to an aggregate term of 72
months imprisonment. See United States v. Weiters,
No. 2:16-0056 (D.S.C. June 29, 2016). Petitioner did not file a
notice of appeal and did not file a motion pursuant to 28
U.S.C. § 2255. Petition, ECF No. 1 at 2-5. Instead,
Petitioner filed this Petition in the District Court for the
Eastern District of North Carolina on March 15, 2019, and the
case was transferred to this Court on August 27, 2019.
Petitioner asks that his sentences be vacated with an order
to correct the sentence and resentence him. Id. at
8. He argues that "[i]n light of the intervening changes
in both the [Supreme Court] and Circuit levels, the
petitioner's sentence is unlawfully being carried out and
requires correction." Id. at 6. In his
accompanying memorandum, Petitioner argues that "[i]n
light of Descamps, Mathis, and Hemmigway [sic], the
petitioner's South Carolina priors no longer qualify for
predicates for enhancement purposes."
Petitioner's Memorandum, ECF No. 1-1 at 5.
noted in the transfer order (ECF No. 4 at 2), Petitioner is
in fact attacking the legality, rather than the execution of,
his conviction and sentence. This action is therefore 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);
Petitioner has made no such showing in this case.
Wheeler, the Fourth Circuit held 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 415, 429 (4th
Cir. 2Ol8)(citing Jones, 226 F.3d at 333-34
(4th Cir. 2000)). In this case, there is no
plausible allegation that the savings clause permits
Petitioner to bring his claims under § 2241. As there is
no indication that Petitioner has filed a § 2255 action
with the sentencing court to permit it to review his claims
for relief, Petitioner fails to meet the Wheeler
test as he cannot establish that, subsequent to his first
§ 2255 motion, the "settled substantive law [that
established the legality of his sentence] changed and was
deemed to apply retroactively on collateral review," as
required by the second prong of the test because he has not
filed his first § 2255 motion. Accordingly, Petitioner
cannot demonstrate that relief under § 2255 is
"inadequate or ineffective." Instead, a
prisoner in federal custody must first proceed with a §
2255 motion before attempting to satisfy the "savings
clause." See Hernandez v. Drew, 371 Fed.Appx.
991, 993 (11th Cir. Apr. 7, 2010)[noting that a prisoner may
not circumvent the requirements for filing a § 2255
motion merely by filing a § 2241 petition.]; Dinkins
v. Thomas. No. 8:15-490-RMG, 2015 WL 1877434, at *4
(D.S.C. April 23, 2015); Hackett v. Atkinson, No.
9:13-1274-JFA-BM, 2013 WL 3972393, at *3 (D.S.C. July 31,
rather than dismiss this case, the undersigned recommends
that in the interest of justice this § 2241 habeas
petition be recharacterized as a motion to vacate, set aside,
or correct Petitioner's sentence pursuant to 28 U.S.C.
§ 2255. See Castro v. United States, 540 U.S.
375, 381 (2003) ["Federal courts sometimes will ignore
the legal label that a pro se litigant attaches to a motion
and recharacterize the motion in order to place it within a
different legal category .... to avoid an unnecessary
dismissal...."]. Because the AEDPA's one-year
statute of limitations in 28 U.S.C. §
2255(f) may be an issue in this case, it is
appropriate to recharacterize the Petition rather than
dismiss it without prejudice because of the proximity of the
running of the one-year time clock.
if this case is recharacterized as a § 2255 action,
Petitioner is informed that any subsequent § 2255 motion
will be subject to the restrictions on successive or second
§ 2255 motions set forth in 28 U.S.C. §
2255(h). Therefore, if Petitioner does not wish to
proceed under § 2255, he may withdraw this Petition by
informing the Court in writing of his intent to voluntarily
dismiss this action. See Fed.R.Civ.P. 41(a)(1)[prior to the
entry of an answer or motion for summary judgment by the
opposing party, an action may be voluntarily dismissed by
filing a notice of dismissal]. Alternatively, if Petitioner
wishes to proceed under § 2255, he may seek leave to
amend the Petition so that it contains all of the § 2255
claims he wants to assert. See Castro, 540 U.S. at
383 [listing the notice requirements that must be provided to
a petitioner prior to recharacterization]; United States
v. Blackstock, 513 F.3d 128 (4th Cir. 2008).
on the foregoing, it is recommended that, after providing
Petitioner with the proper notice and opportunity to respond
as required by United States v. Castro, 540 U.S. 375
(2003), the Court recharacterize this § 2241 petition as
a § 2255 case. Petitioner's attention is directed to
the important notice on the next page.
of Right to File Objections to Report ...