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Majors v. Vereen

United States District Court, D. South Carolina

October 10, 2019

Herman Majors, Petitioner,
Walter Vereen, Defendant.




         Herman Majors, (“Petitioner”), proceeding pro se, is an inmate incarcerated at the Federal Correctional Institution in Edgefield, South Carolina, in the custody of the Federal Bureau of Prisons. Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the case was referred to the Magistrate Judge.

         The Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”) and opines that this Court should dismiss the Petition in this case without prejudice and without requiring Respondent to file a return, and decline to issue a certificate of appealability. (ECF No. 7). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation.


         The Court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge's Report to which an objection is made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report of the Magistrate, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).


         Petitioner was advised of his right to object to the Report, which was entered on the docket on May 10, 2019. (ECF No. 7). Petitioner filed timely objections on May 20, 2019. (ECF No. 10). Thus, this matter is ripe for review.

         The Report recites the factual and procedural background giving rise to this action. Briefly, in 2012, a jury in the Middle District of Tennessee found Petitioner guilty of participating in a conspiracy to possess with the intent to distribute cocaine. The Court sentenced Petitioner to 360 months in prison. Thereafter, Petitioner filed an appeal challenging his sentence and conviction, which was affirmed by the Sixth Circuit and the Supreme Court denied certiorari. Petitioner then filed a motion under 28 U.S.C. § 2255. Although the sentencing court denied Petitioner's motion, it granted a certificate of appealability for three of his claims which were for ineffective assistance of counsel. However, the Sixth Circuit affirmed and the Supreme Court denied certiorari. Petitioner then filed this § 2241 petition. (ECF No. 1).

         In his § 2241 petition, Petitioner challenges his conviction and sentence. He claims 1) the sentencing court improperly found him accountable for over 150 kilograms of cocaine, 2) it used a criminal history score that overstated the seriousness of his prior crimes, and 3) the sentencing court violated 21 U.S.C. § 851 by applying a recidivism enhancement to his sentence when the government did not file a § 851 recidivist information. (ECF No. 1). As the Report points out, Petitioner does not label any other issues as grounds for relief, however, he makes allegations bearing on the validity of his conviction. Petitioner requests this Court to vacate the sentencing court's judgment, not dismiss his Petition, and require the Respondent to file a return. (ECF No. 1, 10).

         a. Claims Involving Legality of Sentence

         Petitioner relies on § 2255's “savings clause” to bring this action because he has already used up his first § 2255 motion and does not qualify for permission to file a successive § 2255 motion. The Magistrate Judge suggests that the instant Petition should be dismissed because Petitioner cannot prove that he can use § 2255's “savings clause” to challenge his sentence or conviction. (ECF No. 7).

         As for Petitioner's claims challenging his sentence, the Magistrate Judge contends his claims cannot satisfy the test set forth in Wheeler.[2] United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). In Wheeler, the Fourth Circuit Court of Appeals set forth a four-part test for using the savings clause to challenge sentences. Id. First, the Magistrate Judge argues that Petitioner is unable to satisfy Wheeler's fourth requirement because his claims involve the sentencing court's guidelines calculations and those calculations are advisory. (ECF No. 7). Because the challenge is based on an advisory application of the Guidelines, the Magistrate Judge contends this claim cannot satisfy the fourth requirement of Wheeler which requires the error in sentencing to be a fundamental defect.

         Construing the objections in the light most favorable to Petitioner, it appears he objects to this portion of the Report by stating that his sentence was imposed as a “result of an incorrect application of the sentencing guidelines” and he cites several cases for support. (ECF No. 10). However, the Magistrate Judge is correct, an incorrect application or a miscalculation of the sentencing guidelines does not qualify as a “fundamental defect” to satisfy Wheeler's fourth requirement. (ECF No. 7). In United States v. Foote, the Fourth Circuit held that a miscalculation of an advisory guidelines range is not a fundamental defect. United States v. Foote, 784 F.3d 931 (4th Cir. 2015). A cognizable fundamental defect includes a “defect of a constitutional magnitude” and “defects that are equally fundamental, such as sentences issued in excess of the maximum authorized by law.” Id. at 942. Because the United States Sentencing Guidelines lack “legal force, ” they are not “in the same category as a violation of statute or constitutional provision.” Id. at 941-42. Petitioner was sentenced under the advisory sentencing guidelines and as such his claims that his sentence was imposed as an incorrect application of the guidelines fails to satisfy Wheeler's fourth requirement. Lester v. Flourney, 909 F.3d 708, 715 (4th Cir. 2018) (noting that “Foote undoubtedly would bar ...

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