United States District Court, D. South Carolina, Beaufort 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 recommending that the Court
recharacterize Petitioner's motion brought under 28
U.S.C. § 2241 as brought under § 2255. (Dkt. No.
12.) For the reasons set forth below, the R & R is
adopted as the order of the Court and Mr. Weiters is provided
notice of the Court's intent to recharacterize.
Weiters brings this motion pursuant to 28 U.S.C. § 2241
to challenge the legality of his sentence. After pleading
guilty to one count of possession with intent to distribute a
controlled substance and one count of being a felon in
possession of a firearm or ammunition, Mr. Weiters was
sentenced on January 27, 2017 in the District of South
Carolina to a seventy-two month term of incarceration plus a
$200.00 special assessment and four-year term of supervised
release. 2:16-cr-0056-RMG-1 at Dkt. Nos. 41, 49.
Weiters was incarcerated at FCI Butner II when he brought the
instant § 2241 motion, and then notified the Court of
his change of address at a halfway house. The Magistrate
Judge therefore re-mailed the R & R to Mr. Weiters as his
new address and extended his objection deadline. (Dkt. Nos.
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight, and the responsibility to
make a final determination remains with the Court. See,
e.g., 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
a petitioner has not objected, 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 correctly concluded that Petitioner's
§ 2241 motion to challenge the legality of his sentence
is subject to dismissal because “it is well established
that defendants convicted in federal court are obligated to
seek habeas relief from their convictions and sentences
through § 2255.” Rice v. Rivera, 617 F.3d
802, 807 (4th Cir. 2010). A petitioner may nonetheless
proceed under § 2241 if § 2255 is “inadequate
or ineffective to test the legality of [his]
detention.” In re Jones, 226 F.3d 328, 333
(4th Cir. 2010). To demonstrate that a § 2255 petition
would be inadequate or ineffective, the petitioner must
(1) at the time of conviction, settled law of [the Fourth
Circuit] or the Supreme Court established the legality of the
conviction; (2) subsequent to the prisoner's direct
appeal and first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal; and (3) the prisoner
cannot satisfy the gatekeeping provision of § 2255
because the new rule is not one of constitutional law.
United States v. Wheeler, 886 F.3d 415, 427 (4th
Magistrate Judge noted, Mr. Weiters cannot satisfy the
Wheeler standard here because there is no subsequent
change in binding law and he has not filed a § 2255
petition. Rather than dismiss this § 2241 motion, the
Magistrate Judge recommends that the Court recharacterize it
in the interest of justice as brought under § 2255. Mr.
Weiters filed no objections to this recommendation. Before
recharacterizing the motion, the Court must provide Mr.
Weiters with certain warning and notice, which the Magistrate
Judge also provided in the R & R. Castro v. United
States, 540 U.S. 375, 383 (2003).
foregoing reasons, the Court ADOPTS the
Magistrate Judge's R & R (Dkt. No. 12) as the order