Singletary v. United States of America

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATIONS for 19 Report and Recommendations, This § 2241 petition is dismissed without prejudice and without requiring Respondent to file a return.. Signed by Honorable Cameron McGowan Currie on 10/31/08. (ahen, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION James H. Singletary, #93438-071, ) ) Petitioner, ) ) v. ) ) United States of America; Warden of ) FCI ­ Edgefield, ) ) Respondents. ) ___________________________________ ) C/A NO. 0:08-3179-CMC-PJG

OPINION and ORDER

This matter is before the court on Petitioner's pro se application for habeas corpus relief, filed in this court pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to a United States Magistrate for pre-trial proceedings and a Report and Recommendation. On October 16, 2008, Magistrate Judge Joseph R. McCrorey issued a Report recommending that this petition be dismissed without prejudice and without issuance and service of process. The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the Report and Recommendation and the serious consequences if he failed to do so. Petitioner filed objections to the Report on October 24, 2008. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report and Recommendation of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the

recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and the objections of Petitioner, the court agrees with the conclusions of the Magistrate Judge. The court accordingly adopts the Report and Recommendation as part of this order. The court finds this matter to be controlled by the Fourth Circuit Court of Appeals decision in In re Jones, 226 F.3d 328 (4th Cir. 2000). In Jones, the Fourth Circuit held that "in a limited number of circumstances . . . § 2255 . . . is inadequate or ineffective to test the legality of the detention of federal prisoners." Jones, supra, 226 F.3d at 333. The court held § 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this 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 provisions of § 2255 because the new rule is not one of constitutional law. Id. at 333-34 (emphasis added). In the present matter, Petitioner has made insufficient showing that his circumstance warrants the application of § 2255's "savings clause." Petitioner's claims attack the validity of his sentence, and indeed are duplicative of claims earlier disposed of by this court. This sort of collateral attack falls into the category of claims covered by § 2255. Petitioner's remedy lies in an application to the Fourth Circuit to file a successive petition under § 2255. Petitioner's contention that a § 2255 motion is inadequate to test the legality of his detention since such motion has been previously filed and Petitioner cannot prevail on a successive 2

form of such motion is insufficient reason to allow this § 2241 petition to proceed. This § 2241 petition is dismissed without prejudice and without requiring Respondent to file a return. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina October 31, 2008

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