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Farmer v. Jenson

United States District Court, D. South Carolina, Rock Hill Division

October 24, 2019

Josand Farmer, Petitioner,
v.
Assistant Warden Jenson, Respondent.

          ORDER

          Timothy M. Cain United States District Judge.

         Petitioner Josand Farmer, a federal prisoner proceeding pro se, filed this action pursuant to 28 U.S.C. § 2241, seeking relief from his sentence. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this case was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that this court dismiss the Petition without prejudice and without requiring Respondent to file a return. (ECF No. 7). The magistrate judge notified Petitioner of his right to file objections to the Report, id. at 6, and Petitioner filed timely objections (ECF No. 10).

         The recommendations set forth in the Report have no presumptive weight, and this court remains responsible for making a final determination in this matter. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which a specific objection is made, and the court may accept, reject, modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         Since Petitioner has filed this Petition pro se, this court is charged with construing the Petition liberally in order to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal citations omitted); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, this does not mean that the court can ignore the Petitioner's failure to allege facts that set forth a claim that is cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         I. BACKGROUND/PROCEDURAL HISTORY

         The magistrate judge set forth the facts in her Report. (ECF No. 7). Briefly, Petitioner was convicted by a jury in the United States District Court for the Eastern District of North Carolina of conspiracy to distribute narcotics. (ECF No. 1 at 1). Petitioner was sentenced on September 26, 2011, in the Eastern District of North Carolina. Id. The Fourth Circuit Court of Appeals affirmed this conviction and sentence on June 5, 2012. United States v. Farmer, 482 Fed. App'x 805 (4th Cir. 2012).

         Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in November 2012, (ECF No. 1 at 4), and such motion was denied in December 2013, Farmer v. United States, No. 5:10-CR-271-FL-3, 2013 WL 6799977 (E.D. N.C. Dec. 20, 2013). Petitioner contends that he filed a second § 2255 motion in 2016, arguing that he was no longer considered a career offender pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).[1] (ECF No. 1 at 4).

         On July 15, 2019, Petitioner filed the instant Petition for writ of habeas corpus pursuant to § 2241, [2] asking the court to “vacate count one, three, and seven, and remand . . . back to the district court to determine and sentence . . . in accordance to the proper drug weight” or to grant a new trial.[3] (ECF No. 1 at 9). As the sole ground for his Petition, Petitioner argues that his mandatory minimum sentence was erroneously increased because the district court did not instruct the jury that it had to determine what amount of cocaine was attributable to Petitioner under the Pinkerton[4]principles. Id. at 6-7. Therefore, Petitioner contends that he was sentenced under a higher statutory range pursuant to 21 U.S.C. § 841(b) and the Sentencing Guidelines. Id. at 8.

         II. DISCUSSION

         The magistrate judge recommends that the Petition be dismissed because Petitioner has not shown that his challenges to his sentence[5] relies on a change in substantive law, and, therefore, has not satisfied the § 2255 savings clause to seek relief under § 2241. (ECF No. 7 at 4). Petitioner filed objections to the Report, but rather than asserting specific challenges to the magistrate judge's findings of fact and conclusions, Petitioner's objections largely restated his claims or were nonresponsive to the Report. (ECF No. 9). However, Petitioner did specifically object to the magistrate judge's determinations that he has not satisfied the requirements of the § 2255 savings clause and that he has not sufficiently met the test in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Id. Petitioner's objections also contend that magistrate judge has “concede[d] that the petitioner rel[ies] on a law that has been settled in the Fourth Circuit long before he was sentenced, ” and that, therefore, his relief should be granted. Id. at 4 - 5. Furthermore, Petitioner contends that the magistrate judge has wrongfully sought to “limit the scope and range” of habeas relief by requiring Petitioner to “satisfy a prong of the savings clause, ” and that he should be allowed a “meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application, or interpretation of relevant law.” Id. at 5.

         The magistrate judge correctly noted in her Report that in order for a petitioner to challenge his federal conviction or sentence under § 2241, he must show, under the “savings clause” of § 2255(e), that a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” § 2255(e). Though Petitioner contends that the magistrate judge erred in requiring him to satisfy the savings clause in order to pursue habeas relief under § 2241, the court recognizes that the savings clause is a “jurisdictional provision, ” and, accordingly, this court is without jurisdiction to rule on a § 2241 petition if such a showing is not made. Wheeler, 886 F.3d at 423; see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).

         It is well-settled that in order to demonstrate that a § 2255 motion is inadequate and ineffective to test the legality of a conviction, a petitioner in this circuit must show that:

(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;
(2) subsequent to the [petitioner's] direct appeal and first ยง 2255 motion, the substantive law changed such that the conduct of which the prisoner was ...

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