Sisk et al v. Thomas
ORDER AND OPINION adopting the 20 Report and Recommendation, denying Petitioner's 14 Amended Petition without prejudice, denying Petitioner's 24 Motion for Release as moot, and denying a certificate of appealability. Signed by Honorable Margaret B. Seymour on 9/27/2016. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Robert L. Sisk,
) C/A No. 0:15-2855-MBS-PJG
ORDER AND OPINION
Petitioner Robert L. Sisk, appearing pro se, is an inmate at the Federal Correctional
Institution – Edgefield in Edgefield, South Carolina. He brings this action pursuant to 28 U.S.C.
§ 2241, first, to challenge the legality of his sentence on the grounds of an improper career offender
enhancement, and second, to challenge the Bureau of Prison’s failure to motion for a reduction in
his sentence. Petitioner has also filed a motion for release pursuant to Fed. R. App. P. 23.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was
referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. The Magistrate
Judge filed a Report and Recommendation on October 21, 2015, in which she recommended that
Petitioner’s habeas petition be summarily dismissed without prejudice. ECF No. 20.
Magistrate Judge determined that a § 2241 habeas petition is not the proper way to bring forth
Petitioner’s challenge as the Petitioner is not asserting actual innocence. ECF No. 20 3-4. The
Magistrate Judge reasoned that Petitioner raised no factual issues to suggest that the conduct
Petitioner was convicted of was noncriminal. ECF No. 20 at 5. Instead, Petitioner simply
challenges the “legal classification” of his predicate offense. Id. On November 5, 2015, Petitioner
filed objections to the Report. ECF No. 23.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with this
court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo
determination of any portions of the Report and Recommendation 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 may recommit the matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
On November 16, 2001, a jury in the United States District Court for the Western District
of North Carolina, found Petitioner guilty of conspiracy to possess with intent to distribute fifty
grams or more of methamphetamine, under 21 U.S.C. § 841. Sisk v. United States, No. 05-CV312, Order at 2 (W.D.N.C. October 23, 2009). Petitioner was sentenced to 276 months
imprisonment. Id. at 9. Petitioner’s sentence included a “criminal offender” enhancement under
the United States Sentencing Guidelines, based on two prior convictions for “assault on a female”
under North Carolina state law. ECF No. 16 at 1-2. Petitioner filed a direct appeal and a habeas
petition under 28 U.S.C. § 2255. ECF No. 14 at 2, 4. Petitioner also claims to have filed a request
with the Director of the Bureau of Prisons, pursuant to 18 U.S.C. § 3582, in which Petitioner asked
the Director to motion this court for a reduction in Petitioner’s sentence. ECF No. 16 at 5.
According to Petitioner, this request was not “process[ed].” Id.
On July 22, 2015, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. ECF No. 1. Petitioner later filed an amended petition on September 3, 2015. ECF No. 14.
In his memoranda, Petitioner argues that the court should modify his sentence and order his
immediate release based on recent case law suggesting that Petitioner’s prior conviction for North
Carolina’s “assault on a female” is not a crime of violence. ECF Nos. 1 at 2; 14 at 8 (citing United
States v. Kelly, 917 F. Supp. 2d 553 (W.D.N.C. 2013)).
On September 30, 2015, Petitioner filed a supplemental memorandum in which he added
a claim for relief under Johnson v. United States, 135 S. Ct. 2551 (2015). ECF No. 16.
Additionally, on November 5, 2015, Petitioner filed a motion, pursuant to Fed. R. App. P. 23,
requesting that he be released on personal recognizance while his habeas petition remained under
review. ECF No. 24. Finally, Petitioner filed two additional supplements to his amended petition
on December 14, 2015, and April 29, 2016, respectively. ECF Nos. 27 and 29.
Petitioner first objects to the Magistrate Judge’s conclusion that a § 2241 habeas petition
is an inappropriate vehicle for bringing his challenge. As a general matter, defendants convicted
in federal court must rely on § 2255 in seeking habeas relief from their convictions and sentences.
See In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997) (en banc). However, when § 2255 proves
inadequate or ineffective to test the legality of a detention, a federal prisoner may pursue habeas
relief under § 2241. See id. This exception, found at § 2255(e), has been termed the “savings
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 her report, the Magistrate Judge reasoned that the savings clause could only be used
where a petitioner alleges actual innocence of a conviction, which Petitioner fails to do. ECF No.
20 at 4 (citing United States v. Surratt, 797 F.3d 240, 256 (4th Cir. 2015), reh'g en banc granted
(Dec. 2, 2015)). Petitioner objects to the Magistrate Judge’s reasoning and instead argues that he
need not allege actual innocence of a conviction. Instead, Petitioner points to a Seventh Circuit
case that suggests the savings clause may be used to challenge the misapplication of the Guidelines.
In Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013), the Seventh Circuit reasoned that
sentences imposed prior to United States v. Booker, 543 U.S. 220 (2005), were based on mandatory
Guidelines. Therefore, the Seventh Circuit continued, these Guideline sentences had the “force
and effect of law” such that a Guideline maximum was essentially a statutory maximum. See
Brown, 719 F.3d at 588. Based on this reasoning, the Seventh Circuit held the following:
For a prisoner serving a sentence imposed when the guidelines were
mandatory, a § 2241 habeas petition raising a guidelines error tests the
legality of his detention” within the meaning of the savings clause, §
2255(e) . . . .
Petitioner relies on the Seventh Circuit’s interpretation and suggests that the Fourth Circuit
has endorsed its reasoning. In United States v. Surratt, 797 F.3d 240, 256 (4th Cir. 2015), reh'g en
banc granted (Dec. 2, 2015), the Fourth Circuit did leave open the possibility that § 2241 could be
used to challenge a sentence imposed above a statutory maximum: “We do not decide whether,
for instance, a federal prisoner might bring a § 2241 petition claiming that the district court
unlawfully sentenced him to a term of imprisonment exceeding the statutory maximum.” Id. at
269. However, the Fourth Circuit clarified that it would not weigh in on “whether the Seventh
Circuit correctly characterized the former Guidelines regime.” Id. at 256. More specifically, the
Fourth Circuit neither states nor suggests that it agrees with the conflation of pre-Booker Guideline
maximums with statutory maximums.
Despite the absence of language from the Fourth Circuit, Petitioner nevertheless argues
that the sentence imposed on him was above the Guidelines range, and thus properly challenged
via the savings clause. At the time of Petitioner’s sentencing in 2002, the Guidelines set forth a
mandatory sentencing range of 262 to 327 months for an offense level of 34 and a criminal history
category of VI. Petitioner argues that had the Guidelines not imposed a “career offender”
enhancement under U.S.S.G. § 4B1.1, Petitioner’s revised Guidelines range would have been
reduced by about ten years. ECF No. 14 at 5. Therefore, Petitioner continues, his 276 month
sentence was far above the correct Guideline maximum, which in a pre-Booker era, is essentially
a statutory maximum and thus appropriately challenged under the savings clause.
Absent applicable authority endorsing the reasoning of the Seventh Circuit, the court finds
Petitioner’s argument unpersuasive. Even if the Fourth Circuit has left open the possibility of
challenging a sentence in excess of a statutory maximum, the Fourth Circuit does not seem to
contemplate a challenge in excess of a Guideline maximum. At the time of Petitioner’s sentencing,
the maximum penalty for a conviction for Petitioner’s offense was a life sentence. 21 U.S.C.A. §
841(b)(1)(A)(viii)(2000). Therefore, Plaintiff’s 276 month sentence was not in excess of the
Bureau of Prisons Motion for Reduction
Next, Petitioner objects to the Magistrate Judge not recommending that this court order the
Bureau of Prisons to motion for a reduction in Petitioner’s sentence. ECF No. 29. Petitioner asks
the court to consider 18 U.S.C. § 3582, which provides that the court, upon motion of the Director
of the Bureau of Prisons, may reduce a prisoner’s sentence if the court finds “extraordinary and
compelling reasons” for doing so. However, there has been no such motion filed by the Director
of the Bureau of Prisons. As such, the court is without authority to modify Petitioner’s sentence.
See United States v. Bansal, 409 F. App’x 663, 664 (4th Cir. 2011) (“Because this case does not
involve a motion by the Director of the Bureau of Prisons . . . , we conclude that the district court
correctly determined that it lacked the authority to alter the sentence imposed.”).
Challenge under Johnson v. United States, 135 S. Ct. 2551 (2015)
Petitioner also argues that he should not have been sentenced as a career offender under
the Guidelines in light of the recent Supreme Court precedent, Johnson v. United States, 135 S.
Ct. 2551 (2015). ECF No. 16 at 3. In Johnson, the Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”) is unconstitutionally vague. Id. at 2563. Although Johnson
addressed the constitutionality of the ACCA and not the career offender provision of the
Guidelines, some courts have found that the similarity of the language in the two provisions
warrants the application of Johnson to the career offender provision. See United States v.
Townsend, 638 F. App’x 172, 177-78 (3d Cir. 2015) (applying Johnson to the career offender
provision and remanding for resentencing).
The Fourth Circuit has yet to provide guidance on the issue, and the court need not weigh
in on the merits of Petitioner’s argument. As discussed above, a petitioner may only challenge the
legality of a detention via § 2241 when “§ 2255 proves inadequate or ineffective to test the legality
of . . . detention.” In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (citing 28 U.S.C. § 2255(e)).
Petitioner offers no explanation for couching his Johnson-related claims in a § 2241 petition rather
than a § 2255 motion. Therefore, the court finds that Petitioner’s § 2241 habeas petition is an
inappropriate vehicle for bringing his Johnson challenge.
Motion for Release
Finally, Petitioner’s motion for release (ECF No. 24), filed while his habeas petition was
under review, is denied as moot.
The court adopts the Report and Recommendation and incorporates it herein by reference.
For the reasons stated herein and in the Report and Recommendation, Petitioner’s Amended
Petition (ECF No. 14) is DENIED WITHOUT PREJUDICE. Petitioner’s Motion for Release
(ECF No. 24) is DENIED AS MOOT.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases, as effective December 1, 2009,
provides that the district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong and that any dispositive procedural
ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-
38(2003); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that Petitioner
has not made the requisite showing. Accordingly, the court DENIES a certificate of appealability.
IT IS SO ORDERED.
s/ Margaret B. Seymour________
Margaret B. Seymour
Senior United States District Judge
Charleston, South Carolina
September 27, 2016
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