Sheppard v. Thomas

Filing 25

ORDER concurring in the 17 recommendation of the Magistrate Judge, dismissing Petitioner's action without prejudice and without requiring the Respondent to file a return, and denying Petitioner's 19 Motion for Release as moot. Signed by Honorable Margaret B. Seymour on 7/13/2016. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Bradley Shane Sheppard,

)
) Cr. No. 0:15-03081-MBS
Petitioner,
)
)
vs.
)
)
ORDER
L.R. Thomas,
)
)
Respondent.
)
____________________________________)
Petitioner Bradley Shane Sheppard is a prisoner in custody of the Bureau of Prisons who
currently is housed at the Federal Correctional Institution – Edgefield in Edgefield, South Carolina.
On August 5, 2015, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241,
asserting that he is being detained illegally. Petitioner alleges that a prior conviction used to sentence
him as an armed career criminal does not qualify as a crime of violence under 18 U.S.C. 924(e). 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 a Report and Recommendation.
The Magistrate Judge reviewed the petition pursuant to the Rules Governing § 2254 Cases,
28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1955, and other legal
precedents. The Magistrate Judge determined that Petitioner’s remedy is to bring an action pursuant
to 28 U.S.C. § 2255. Accordingly, the Magistrate Judge issued a Report and Recommendation on
October 21, 2015, recommending that the § 2241 petition be dismissed without prejudice. In a
footnote, the Magistrate Judge noted the possible application of Johnson v. United States, 135 S. Ct.
2551 (2015), but observing that, since Johnson had not been determined to be retroactive to cases
on collateral review, addressing the merits of a Johnson claim under § 2241 would be premature.

Since the issuance of the Magistrate Judge’s Report and Recommendation, Petitioner applied
for and received from the Fourth Circuit Court of Appeals authorization to file a successive habeas
application pursuant to Johnson. Petitioner filed a motion pursuant to 28 U.S.C. § 2255 on May 4,
2016. It appears that Petitioner has obtained an adequate remedy pursuant to § 2255. See In re Vial,
115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
The court concurs in the recommendation of the Magistrate Judge. Petitioner’s § 2241
motion is dismissed without prejudice and without requiring Respondent to file a return.
Additionally, Petitioner’s Motion for Release of Prisoner (ECF No. 19) is denied as moot.
IT IS SO ORDERED.

s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
July 13, 2016.

2