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Comb v. Hutchinson

United States District Court, D. South Carolina

December 3, 2019

Zebadiah J. Comb, #97622-079, Petitioner,
v.
J. Hutchinson, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges United States Magistrate Judge

         Zebadiah 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.

         I. Factual and Procedural Background

         Petitioner 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.

         Petitioner 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)[1] 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.

         As a 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.[2] [ECF No. 1 at 6]. Under “GROUND THREE, ” Petitioner writes “USSG § 3B1.1(b), [3] but makes no argument as to the misapplication of this section.

         Petitioner 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.

         II. Discussion

         A. Standard of Review

         Under 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).

         B. Analysis

         “[I]t 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.

         “The 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 petition.

         1. The Court Lacks Jurisdiction to Entertain Petitioner's Challenge to ...


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