United States District Court, D. South Carolina
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE
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.
Magistrate Judge assigned to this action 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
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).
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.
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).
§ 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).
Claims Involving Legality of Sentence
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).
Petitioner's claims challenging his sentence, the
Magistrate Judge contends his claims cannot satisfy the test
set forth in Wheeler. 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.
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