Sitz v. Thomas

Filing 29

ORDER concurring in the 16 recommendation of the Magistrate Judge and dismissing the action without prejudice and without requiring Respondent to file a return. IT IS FURTHER ORDERED that Petitioner's 21 motion for release is denied as moot. Signed by Honorable Margaret B. Seymour on 7/28/2016. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Gregory Lynn Sitz,

)
) Cr. No. 0:15-3083-MBS
Petitioner,
)
)
vs.
)
)
ORDER
L.R. Thomas,
)
)
Respondent.
)
____________________________________)
Petitioner Gregory Lynn Sitz is a prisoner in custody of the Bureau of Prisons who currently
is housed at FPC-Edgefield in Edgefield, South Carolina. On September 10, 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 prior convictions used to sentence him in the Eastern District of
Texas as an armed career criminal do not qualify as crimes of violence under 18 U.S.C. 924(c). 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 22, 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 observed 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, the United States
Supreme Court has determined that Johnson is retroactively applicable to cases on collateral review.
See Welch v. United States, 136 S. Ct. 1257 (2016). Upon inquiry, Petitioner has informed the court
that he has applied to the Fifth Circuit Court of Appeals for authorization to file a successive habeas
application pursuant to Johnson, and that he has filed a § 2255 motion with the sentencing court.
See ECF No. 28. 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. Petitioner’s
motion for release (ECF No. 21) is denied as moot.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
July 28, 2016.

2