Neal v. Joyner
Filing
40
ORDER AND OPINION adopting the 36 Report and Recommendation and dismissing Petitioner's Amended Petition without prejudice. Signed by Honorable Richard M. Gergel on 8/30/2018. (bgoo)
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Craig Andre Neal,
Petitioner,
v.
Warden Joyner,
Respondent.
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Civil Action No. 0:17-2352-RMG
ORDER AND OPINION
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Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
recommending that Craig Andre Neal ' s Amended Petition for a writ of habeas corpus be
dismissed for lack of jurisdiction. (Dkt. No. 36.) For the reasons set forth below, the Court
adopts the R & R as the Order of the Court and the Amended Petition is dismissed without
prejudice.
I.
Background
Petitioner Craig Andre Neal is a prisoner at the Federal Correctional Institution Estill
who has filed a pro se Amended Petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. (Dkt. No. 35.) Petitioner was found guilty by a jury of conspiracy to distribute cocaine,
possession with intent to distribute cocaine and possession with intent to distribute marijuana,
and was sentenced by the District Court for the Middle District of Florida to an aggregate term of
life imprisonment. Petitioner asserts that his prior federal sentence was made unlawful pursuant
to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) because the sentencing court
misapplied his prior Georgia state convictions as federal sentencing enhancements under 21
U.S .C. § 841(b)(l)(A). Petitioner has filed Objections to the Magistrate Judge ' s R & R.
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II.
Legal Standard
The Magistrate Judge makes a recommendation to the Court that has no presumptive
weight and the responsibility to make a final determination remains with the Court. See, e.g.,
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(l)(C).
Where the petitioner objects to the R & R, the Court "makes a de nova
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made." Id. Where the petitioner has not objected, the Court reviews the R
& R to "only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation." Fed. R. Civ. P. 72 advisory committee's note.
In the absence of
objections, the Court need not give any explanation for adopting the Magistrate Judge's analysis
and recommendation. See, e.g., Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the
absence of objection ... we do not believe that it requires any explanation.").
III.
Discussion
The Court finds that the Magistrate Judge ably addressed the issues raised by Petitioner
and correctly concluded that the action should be dismissed for lack of jurisdiction. As discussed
in the R & R, a petitioner cannot challenge his federal conviction and sentence pursuant to 28
U.S.C. § 2241 unless he demonstrates that a motion under 28 U.S .C. § 2255 is "inadequate or
ineffective to test the legality of his detention." 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617
F.3d 802, 807 (4th Cir. 2010). To make this demonstration under section 2255(e), the petitioner
must establish:
(1) [A]t the time of sentencing, settled law of this circuit or the
Supreme Court established the legality of the sentence; (2)
subsequent to the prisoner' s direct appeal and first § 2255 motion,
the aforementioned settled substantive law changed and was
deemed to apply retroactively on collateral review; (3) the prisoner
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is unable to meet the gatekeeping provisions § 2255(h)(2) for the
second or successive motions ; and (4) due to this retroactive
change, the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Petitioner argues that his sentence was made retroactively unlawful by the holding of the
United States Court of Appeals for the Fourth Circuit in United States v. Simmons, which
amended the method by which a prior North Carolina conviction is considered a felony under
federal sentencing laws. 649 F .3d 23 7 (4th Cir. 2011 ). The Magistrate Judge correctly concluded
that this does not satisfy section 2255(e) because Simmons did not amend how a Georgia
conviction, such as Petitioner' s, is considered under federal sentencing laws. As a result, this
Court lacks jurisdiction and, as the Magistrate Judge noted, Petitioner's potential remedy may be
to seek permission from the United States Court of Appeals for the Eleventh Circuit to file a
successive section 2255 petition in the District Court for the Middle District of Florida, in which
he was sentenced. 1
IV.
Conclusion
For the foregoing reasons, the R & R of the Magistrate Judge (Dkt. No . 36) is
ADOPTED as the Order of the Court. Petitioner's Amended Petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (Dkt. No. 34) is DISMISSED without prejudice.
AND IT IS SO ORDERED.
1
The "Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or
Correct Sentence, 28 U.S.C. § 2255, by a Prisoner in Federal Custody" is made available by the
U.S.
Court
of
Appeals
for
the
Eleventh
Circuit
at
http: //www.cal1.uscourts.gov/sites/default/files/courtdocs/clk/Form2255APP_FEBl 7.pdf.
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Richard Mar Gergel
United States District Court Judge
August ~ o , 2018
Charleston, South Carolina
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