United States District Court, D. South Carolina, Anderson/Greenwood Division
Dwight E. Moss, Petitioner,
Warden B. Dobbs, Respondent.
ORDER AND OPINION
Dwight E. Moss, proceeding pro se, filed for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241
(“Habeas Petition”). The matter before the court
is a review of the Magistrate Judge's Report and
Recommendation (“Report”). (ECF No. 12.) For the
reasons stated below, the court ACCEPTS the
Magistrate Judge's Report (ECF No. 12) and
DISMISSES Petitioner's Habeas Petition
(ECF No. 1) without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (See ECF No. 12 at 1-6.) On August 14,
2019, Petitioner filed this action claiming an unlawful
conviction under 18 U.S.C. § 922(g) and requesting that
the court vacate his conviction and order his release from
custody. (ECF No. 1 at 7.) The Magistrate Judge determined
that “Petitioner was charged . . . with being a felon
in possession of a firearm, and he was convicted by a jury .
. . he contends that his conviction . . . is unlawful, and he
appears to present three grounds to support his
contention.” (ECF No. 12 at 5.) Specifically,
Petitioner's claims are: (1) “in light of
Rehaif v. United States, 139 S.Ct. 914 (2019), he is
innocent of the charge of violation [Section] 922(g) . .
.”; (2) “he is actually and factually innocent of
his conviction for violating [Section] 922(g) because the
firearm that gave rise to his conviction was manufactured in
the same state in which it was seized . . .”; and (3)
“the sentencing court improperly calculated the amount
of loss for which Petitioner was responsible and unlawfully
and unconstitutionally departed upward to impose an
unconstitutional amount of restitution . . . .”
(Id.) On September 23, 2019, the Magistrate Judge
issued a Report recommending that the Habeas Petition be
dismissed without prejudice for lack of subject matter
jurisdiction. (ECF No. 12 at 18.) The parties received notice
of the October 7, 2019, due date for filing objections to the
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. We b e r , 423
U.S. 261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report to which
specific objections are made. See 28 U.S.C. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3). In the
absence of specific objections to the Magistrate Judge's
Report, the court is not required to give any explanation for
adopting the Report. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “in the absence of a
timely filed objection, a district court need not conduct a
de novo review, but instead must only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Thus, the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions.
See 28 U.S.C. § 636(b)(1).
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a manner,
“no matter how inartfully pleaded, to see whether they
could provide a basis for relief.” Garrett v.
Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug.
12, 1997). Although pro se documents are liberally
construed by federal courts, “[t]he ‘special
judicial solicitude' with which a district court should
view pro se complaints does not transform the court
into an advocate.” Weller v. Dep't of Soc.
Servs. for Balt., 901 F.2d 387, 391 (4th Cir. 1990).
record shows that Petitioner has failed to file any
objections to the Report (ECF No. 12), thus the court must
only review the record to ensure that there is no clear
error. See Diamond, 416 F.3d at 315. Here, the
Magistrate Judge relied on the “Savings Clause
Test” in determining that the Habeas Petition must be
dismissed for lack of subject matter jurisdiction. (ECF No.
12 at 7.) The Report provides:
Accordingly, Petitioner cannot challenge his federal sentence
under [Section] 2241 unless he can satisfy the requirements
of the [Section] 2255 savings clause, which states: ‘An
application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.' In other words, as applied here,
Petitioner's [Section] 2241 action is barred unless he
can demonstrate that the relief available to him under
[Section] 2255 is inadequate or ineffective.
(Id. at 7-8 (citing 28 U.S.C. § 2255(e)).)
Section 922(g), the Magistrate Judge concluded that
“Petitioner is attempting to rehash old arguments about
whether the Government met its burden of [proof] . . .”
and that “[his] argument fails because the Government
met its requisite burden . . . proving that Petitioner knew
of his status as a convicted felon . . . knowingly possessed
a firearm, and the firearm traveled in interstate
commerce” because Petitioner stipulated in court
“as to all of the essential elements contained in Count
VI other than possession” and “[t]he jury
returned a guilty verdict on that charge after hearing
evidence and being instructed by the [c]ourt as to the issue
of possession.” (ECF No. 12 at 12.)
Petitioner's contention that “he is innocent of
being a felon in charge of possession . . . because the
firearm never traveled in interstate commerce[, ]” the
Magistrate Judge determined that “Petitioner's
argument is without merit . . . [Petitioner] stipulated at
trial that the gun traveled in interstate commerce . . .
.” (Id. at 16.) Furthermore, regarding the
forfeiture determination, “Petitioner advances no basis
to show that he meets the [S]avings [C]lause [T]est.”
(Id. at 18.) The Report indicates that
“Petitioner fails to identify any charge in the
substantive law subsequent to his direct appeal and first
[Section] 2255 motion . . . [and] the [c]ourt is unable to
glean any substantial argument from the Petition in this case
showing that the [c]ourt has jurisdiction over this claim . .
. .” (Id.) Consequently, the court finds that
Petitioner is not entitled to relief under Section 2241.
thorough review of the Report and the record in this case,
the court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 12) and
DISMISSES Petitioner Dwight E. Moss'
Petition for Writ of Habeas Corpus (ECF No. 1) without