United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 8) recommending
that Mr. Lucas's petition be dismissed for lack of
prosecution. For the reasons set forth below, the declines to
adopt the R & R as the order of the Court and dismisses
Mr. Lucas's petition without prejudice for lack of
Lucas is an incarcerated person proceeding pro se
who in 2012 was sentenced in the district court for the
Eastern District of North Carolina for violation of 28 U.S.C.
§ 922(g)(1) and § 924(a)(2). (4:11-cr-0071-D-l at
Dkt. Nos. 48, 49.) He now petitions this Court to vacate,
correct or set aside his sentence pursuant to 28 U.S.C.
§ 2255, arguing that the United States Supreme
Court's ruling in Rehaifv. United States, 139
S.Ct. 2191 (2019) renders his conviction invalid. (Dkt. No.
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
no objections to the R & R, the Court reviews the R &
R to "only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) ("In the absence of
objection ... we do not believe that it requires any
Magistrate Judge ordered Mr. Lucas to notify the court if he
wishes to continue with this case and pay the filing fee or
submit Form AO240. Mr. Lucas did not object or otherwise
respond to the R & R. The Magistrate Judge appropriately
concluded that this matter is subject to sua sponte
dismissal for lack of prosecution because Mr. Lucas did not
respond to the September 4, 2019 proper form order.
Fed.R.Civ.P. 41(b) ("If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against
it."); Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962) ("The authority of a court to dismiss
sua sponte for lack of prosecution has generally
been considered an 'inherent power, '. . .");
Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir.
1989) (district court's dismissal following failure to
respond to a specific directive is not abuse of discretion).
petition is also subject to dismissal for lack of
jurisdiction. A prisoner in federal custody may attack the
validity of his sentence pursuant to § 2255 by filing a
motion with the court that imposed the sentence. 28 U.S.C.
§ 2255(a). This Court did not impose Mr. Lucas's
sentence; the district court for the Eastern District of
North Carolina is the appropriate venue to hear any §
2255 petition relating to that sentence. This Court,
therefore, lacks jurisdiction to hear the petition.
this Court could reach the merits of a timely § 2255
petition not barred by § 2255(h), it would find as other
courts have that the Rehaif holding is not directly
applicable to attacking a sentence for felon in possession of
a firearm or ammunition because, as the Supreme Court stated,
"We express no view . . . about what precisely the
Government must prove to establish a defendant's
knowledge of status in respect to other § 922(g)
provisions not at issue." 139 S.Ct. at 2200; see
also Waters v. United States, No. 4:15-cr-158-BHH, No.
4:19-cv-4-BHH, 2019 WL 3495998, at *5 (D.S.C. Aug. 1, 2019)
(denying § 2255 petition seeking to invalidate sentence
of felon in possession of a firearm with Rehaif
holding). Moreover, there is no indication that the
Rehaif holding is retroactively applicable to
invalidate an otherwise final conviction under § 922(g).
See, e.g., In re Palacios, 931 F.3d 1314, 1315 (11th
Cir. 2019) (noting that Rehaif did not announce a
"new rule of constitutional law" as required by
§ 2255(h) and, even if it did, "it was not made
retroactive to cases on collateral review by the Supreme
Court"); Dinkins v. United States, No.
4:19-cv-01920-CAS, 2019 WL 3388030, at *2 n.4 (E.D. Mo. July
26, 2019) ("The Court notes that there is no indication
that Rehaif [ ] was made retroactively applicable on
foregoing reasons, the Court declines to adopt the R & R
as the order of the Court and DISMISSES WITHOUT
PREJUDICE Mr. Lucas's petition brought under 28
U.S.C. § 2255.