United States District Court, D. South Carolina, Rock Hill Division
Timothy M. Cain United States District Judge.
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).
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).
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).
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).
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). (ECF No. 1 at 4).
15, 2019, Petitioner filed the instant Petition for writ of
habeas corpus pursuant to § 2241,  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. (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
Pinkertonprinciples. 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.
magistrate judge recommends that the Petition be dismissed
because Petitioner has not shown that his challenges to his
sentence 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.
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).
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
(1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality of the
(2) subsequent to the [petitioner's] direct appeal and
first § 2255 motion, the substantive law changed such
that the conduct of which the prisoner was ...