United States District Court, D. South Carolina
Zebadiah J. Comb, #97622-079, Petitioner,
J. Hutchinson, Respondent.
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge
J. Comb (“Petitioner”), proceeding pro se, filed
this action seeking habeas corpus relief pursuant to 28
U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e)
(D.S.C.), the undersigned is authorized to review such
petitions for relief and submit findings and recommendations
to the district judge. For the following reasons, the
undersigned recommends the district judge dismiss the
petition without requiring Respondent to file a return.
Factual and Procedural Background
is a federal inmate incarcerated at the Federal Correctional
Institution (“FCI”) in Edgefield, South Carolina.
[ECF No. 1 at 1]. On April 11, 2014, Petitioner pleaded
guilty to violations of 18 U.S.C. §§ 2113(a), (d),
and 2 for aiding and abetting bank robbery in the Southern
District of Texas. [ECF Nos. 1 at 1, 1-1 at 2]; United
States of America v. Zebadiah Jerome Comb, C/A No.
4:13-575-06, ECF No. 204 at 1. On September 17, 2015, United
States District Judge Sim Lake committed Petitioner to the
custody of the Bureau of Prisons (“BOP”) for a
term of 188 months and a term of supervised release of five
years. United States of America v. Zebadiah Jerome
Comb, C/A No. 4:13-575-06, ECF No. 204 at 2, 3.
filed the instant § 2241 petition challenging the
validity of his conviction and imposition of his sentence and
seeking a writ of habeas corpus. [ECF No. 1 at 1, 2].
Petitioner alleges his sentence was improperly enhanced
pursuant to United States Sentencing Guidelines
(“USSG”) § 2B1.1(b)(2)(b). [ECF No. 1 at 6].
Petitioner states he was charged with violations of (1) 18
U.S.C. § 2113(a), (d), and 2; (2) 18 U.S.C. §
924(c)(1)(a); and (3) 18 U.S.C. § 924(o). [ECF No. 1-1
at 2]. He indicates he pleaded guilty to the violation of 18
U.S.C. § 2113(a), (d), and 2, in exchange for the
government's agreement to dismiss the charges alleging
violations of 18 U.S.C. §§ 924(c)(1)(a) and 924(o)
and for a sentencing range of 76 to 97 months. Id.
He states the United States Probation Office assessed an
offensive level of 33, which subjected him to a sentencing
range of 150 to 188 months. Id. He claims the
offense level was increased by six levels “because of
the 924(c) enhancement under U.S.S.G. §
2b3.1(b)(2)(B) and several more enhancement[s] that
didn't qualify as  crime[s] of violence.”
Id. at 2, 3. He maintains the district judge
“concluded the enhancement applied and sentenced [him]
to (188) months of imprisonment.” Id. at 2.
second ground for the petition, Petitioner alleges he did not
receive points at sentencing for acceptance of
responsibility, pursuant to U.S.S.G. §
3E1.1. [ECF No. 1 at 6]. Under “GROUND
THREE, ” Petitioner writes “USSG § 3B1.1(b),
makes no argument as to the misapplication of this section.
requests the court grant relief pursuant to United States
v. Davis, 139 S.Ct. 2319 (2019), and Rosemond v.
United States, 572 U.S. 65 (2014), and vacate his
conviction or sentence or order he be resentenced.
Standard of Review
established local procedure in this judicial district, this
petition has been carefully reviewed pursuant to the Rules
Governing Section 2244 Proceedings for the United States
District Court, the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132,
110 Stat. 1214, and other habeas corpus statutes. Pro se
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means if
the court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so.
Nevertheless, the requirement of liberal construction does
not mean the court can ignore a clear failure in the pleading
to allege facts that set forth a claim currently cognizable
in a federal district court. Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
is well established that defendants convicted in federal
court are obliged to seek habeas relief from their
convictions and sentences through § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)
(citing In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997)). Challenges to the execution of a sentence are
properly raised in a § 2241 petition. In re
Vial, 115 F.3d 1194 n.5.
savings clause provides that an individual may seek relief
from an illegal detention by way of a traditional 28 U.S.C.
§ 2241 habeas corpus petition, if he or she can
demonstrate that a § 2255 motion is ‘inadequate or
ineffective to test the legality of his
detention.'” United States v. Wheeler, 886
F.3d 415, 419 (4th Cir. 2018); see also 28 U.S.C.
§ 2255(e)(“An application for a writ of habeas
corpus on 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.”).
Pursuant to 28 U.S.C. § 2255(e), “a § 2241
petition ‘shall not be entertained' if certain
circumstances are present, ‘unless' another
condition is present.” Id. at 425 (citing 28
U.S.C. § 2255(e)). The Fourth Circuit has joined the
Second, Sixth, Eighth, Ninth, and Eleventh Circuits in
finding the savings clause requirements are jurisdictional.
Id. at 424 n.5, 425. If the savings clause
requirements are not met, the court cannot entertain the
Court Lacks Jurisdiction to Entertain Petitioner's
Challenge to ...