United States District Court, D. South Carolina, Beaufort Division
OPINION AND ORDER
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.
Holmes (“Movant”) is a federal inmate currently
housed at FCI Estill in Estill, South Carolina. On May 5,
2017, Movant, proceeding pro se, filed a motion under 28
U.S.C. § 2255 to vacate, set aside, or correct a
sentence. ECF No. 228. This matter is before the court on a
motion to dismiss filed by Respondent United States of
America (the “government”) on July 7, 2017. ECF
No. 235. By order filed July 10, 2017, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Movant was advised of the dismissal procedures and the
possible consequences if he failed to respond adequately.
Movant filed a response to the government’s motion on
August 2, 2017, to which he filed a supplement on August 14,
2017. ECF Nos. 238, 239.
FACTUAL AND PROCEDURAL HISTORY
April 14, 2004, a federal grand jury returned a two count
Indictment charging Movant with conspiracy to distribute
cocaine base and cocaine in violation of 21 U.S.C. §
§ 841(a)(1), (b)(1)(A), (b)(1)(C), and 846 (Count 1);
and possession of a firearm in furtherance of a drug
trafficking offense in violation of 18 U.S.C. § §
924 (c)(1)(A) and (O) (Count 2). ECF No. 1. On May 3, 2007, a
jury found Movant guilty of the offense charged in Count 1
and not guilty of the offense charged in Count 2. ECF No.
109. On May 8, 2007, Movant filed a pro se notice of appeal.
ECF No. 112. On December 1, 2008, Movant’s counsel
filed a second notice of appeal.ECF No. 169. On December 4,
2008, Movant was sentenced by the Honorable Sol Blatt, Jr. to
a term of imprisonment of life. ECF No. 170. The United
States Court of Appeals for the Fourth Circuit issued a
mandate affirming this court’s sentencing decision on
June 22, 2010. ECF No. 195.
17, 2012, Movant filed a § 2255 motion, asserting that
his trial and appellate counsel were ineffective. ECF No.
199. On May 29, 2012, the government filed a motion to
dismiss or, in the alternative, for summary judgment. ECF No.
202. Judge Blatt granted summary judgment in favor of the
government on May 2, 2013. ECF No. 207.
Obama commuted Movant’s sentence on November 4, 2016.
ECF No. 250-2. Based upon this commutation, Movant’s
release date, as calculated by the Bureau of Prisons, is July
29, 2022. See
https://www.bop.gov/inmateloc/ (accessed 9/17/19).
Movant’s current § 2255 motion asserts that his
post- clemency sentence failed to take into account the jail
time that Movant already served. ECF No. 228 at 7.
government contends that this court is without jurisdiction
to consider Movant’s § 2255 motion due to
President Obama’s grant of executive clemency. In
United States v. Surratt, 855 F.3d 218
(4th Cir. 2017), the defendant moved under 28
U.S.C. § 2241 and 28 U.S.C. § 2255, asserting that
he was entitled to relief under United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011)
(holding that a predicate felony conviction for purposes of
the Controlled Substances Act must be an offense punishable
by imprisonment for a term exceeding one year) (citing
Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010)).
The district court determined that the defendant was not
entitled to seek relief under the “savings
clause” of § 2255, which permits a court to
entertain a successive petition under § 2241 if it
appears that the remedy available under § 2255 is
inadequate or ineffective to test the legality of detention.
Surratt, 855 F.3d 223-24. On appeal, the Fourth
Circuit initially affirmed the district judge, but then
vacated and granted a rehearing en banc. Before the Fourth
Circuit made a final determination, President Barak Obama
commuted Surratt’s sentence. The Fourth Circuit
dismissed the appeal as moot. In a concurring opinion, Judge
Wilkinson observed that the defendant was
no longer serving a judicially imposed sentence, but a
presidentially commuted one. The President's commutation
order simply closes the judicial door. Absent some
constitutional infirmity in the commutation order, which is
not present here, we may not readjust or rescind what the
President, in the exercise of his pardon power, has done.
It matters not whether we believe the commutation was too
lenient or not lenient enough. We are simply without power to
inject ourselves into the lawful act of a coordinate branch
of government-one that Surratt willingly agreed to-and
supersede a presidential pardon or commutation with a
contravening order of our own. After all, “[i]t would
be a curious logic to allow a convicted person who petitions
for mercy to retain the full benefit of a lesser punishment
with conditions, yet escape burdens readily assumed in
accepting the commutation which he sought.”
Id. at 219-20 (quoting Schick v. Reed, 419
U.S. 256, 267 (1974)).
Wynn dissented from the dismissal. Judge Wynn disagreed that
the appeal was moot, and noted that
if we were to accord [the defendant] the relief that even the
government concedes is fair by vacating [the
defendant’s] sentence and remanding for resentencing,
[the defendant] would likely be released because his
time-served exceeds the upper end of his now-applicable
Guidelines range. None of us disputes that. And, even under
his commuted sentence, today’s dismissal of [the
defendant’s] action as moot means [the defendant] will
remain in prison for, at a minimum, several more years. None
of us disputes that. It should therefore follow that the
disposition of [the defendant’s] appeal will likely
determine whether [the defendant] remains in prison ...