Dorise v. Bragg

Filing 22

ORDER adopting the 17 Report and Recommendation and dismissing Dorise's Petition without prejudice and without requiring the respondent to file a return. Signed by Honorable Joseph F. Anderson, Jr. on 11/9/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

Mikhael Dorise,

C/A No. 1:17-1881-JFA
Petitioner,

vs.

ORDER

Warden Bragg,
Respondent.

I.

INTRODUCTION
Mikhael Dorise (“Petitioner”), proceeding pro se, is an inmate incarcerated at the Federal

Correctional Institution (“FCI”) in Bennettsville, South Carolina. Petitioner filed the instant
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), the case was referred to the Magistrate Judge.
The Magistrate Judge assigned to this action1 prepared a thorough Report and
Recommendation (“Report”) and opines that this Court should dismiss the petition in this case
without requiring the respondent to file an answer. (ECF No. 17). The Report sets forth, in detail,
the relevant facts and standards of law on this matter, and this Court incorporates those facts and
standards without a recitation.
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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.). 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. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the
Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b)(1).

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Petitioner was advised of his right to object to the Report, which was entered on the
docket on August 31, 2017. (ECF No. 17). Petitioner filed his objection to the Report on
September 18, 2017. (ECF No. 20). Thus, this matter is ripe for review.
The Court is charged with making a de novo determination of those portions of the
Report to which specific objections are made, and the Court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only
required to conduct a de novo review of the specific portions of the Magistrate Judge’s Report to
which an objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W.
Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this Court is not required to give an
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983).
II.

DISCUSSION
Petitioner attempts to make several objections to the Report, most of which are

repetitions of Petitioner’s assertions in his Petition (ECF No. 1). Although vague, some of
Petitioner’s assertions could be construed as definite enough to constitute an objection. However,
each of these objections is without merit.
Petitioner claims that his sentence is unconstitutional and that his case is “virtually
identical” to the ruling in In re Jones, 226 F.3d 328 (4th Cir. 2000). (ECF No. 20). In that case,
the Fourth Circuit examined the term “use” of a firearm in the context of sentencing, ultimately
concluding that “the Government must prove active employment of a firearm in order to convict
under the ‘use’ prong of § 924(c).” 226 F.3d 328, 330 (4th Cir. 2000). Petitioner uses a similar
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argument, asserting that he did not “use” the requisite “physical force” to be classified as a career
offender under the Federal Sentencing Guidelines § 4B1.1. (ECF No. 20 p. 4).
Petitioner relies heavily on the following cases in his assertion, claiming that they
preclude his being classified as a career offender2 because his conduct, in light of these recent
decisions, does not amount to a crime of violence: Mathis v. United States, 136 S.Ct. 2243, 2551
(2016) (“[A] state crime cannot qualify as an ACCA predicate if its elements are broader than
those of a listed generic offense”); Johnson v. United States, 135 S.Ct. 2551 (2015) (finding the
residual clause of the Armed Career Criminal Act unconstitutionally vague); and Descamps v.
United States, 133 S.Ct. 2276 (2013) (clarifying the approach for determining whether state-law
offenses qualify as violent felonies for the purpose of a sentence enhancement under the ACCA);
Begay v. United States, 553 U.S. 137 (2008) (finding that a DUI did not constitute a “violent
felony” as defined by the residual clause of the ACCA). The Fourth Circuit, however, has not
“extended the reach of the savings clause to those petitioners challenging only their sentence,”
actual innocence is required. See United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008).
The Supreme Court of the United States has defined “actual innocence” as “factual innocence,
not mere legal insufficiency.” Bousley v. U.S., 523 U.S. 614, 623 (1998). Since the holdings in
the cases Petitioner cited have not decriminalized the criminal conduct for which he was
convicted,3 his argument is clearly unfounded.
Petitioner attempts to circumvent the actual innocence requirement, asserting that the
majority panel in the Fourth Circuit for the United States v. Surratt, 797 F.3d 240, reh’g en banc
granted (Dec. 2, 2015) opinion left open the possibility that § 2241 could support a challenge to

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Petitioner asserts throughout his Petition that he is not a “career offender” and that his detention is thus “illegal.”
See (ECF No. 20 p. 12-21).
Petitioner was convicted for bank robbery with the use of a dangerous weapon; the use, carrying, and/or
brandishing a firearm during a crime of violence; and the unlawful possession of a firearm by a convicted felon.

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a sentence exceeding the statutory maximum.”4 However, as the Magistrate noted, the Surratt
opinion that Petitioner cites is no longer legal precedent in the Fourth Circuit. Thus, this
argument is unfounded.
Moreover, the present case is similar to Baker v. Zych, No. 7:13-512, 2014 WL 1875114,
at *2 (W.D. Va. May 9, 2014). In that case, the petitioner argued that “his prior convictions for
misdemeanor assault, misdemeanor assault on a law enforcement officer, aiding an escape,
misdemeanor simple assault, and breaking and entering [did] not qualify as ‘violent crimes,’
pursuant to United States v. Descamps.” Baker, 2014 WL 1875114, at *1. The court found that
the petitioner could not “challenge his sentence enhancement as an Armed Career Criminal via §
2241” for three reasons: (1) “the substantive law has not changed to allow a felon to possess a
weapon”; (2) the Fourth Circuit precedent did not “extend the reach of 28 U.S.C. § 2255(e) to
those petitioners challenging only their sentence”; and (3) “case law indicates that Descamps is
not retroactive on collateral review.” Baker, 2014 WL 1875114, at *2 (denying petitioner’s §
2241 motion wherein petitioner argued that he was “improperly sentenced” under § 924(e)).
Petitioner argues that this Court should apply Descamps retroactively, relying heavily on
the decisions in Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) and Hill v. Masters, 836 F.3d
591 (6th Cir. 2016). In Brown the Seventh Circuit Court of Appeals held that “sentences imposed
pursuant to erroneous interpretations of the mandatory guidelines bear upon the legality of the
petitioner’s detention for purposes of the savings clause.” 719 F.3d at 588. Similarly, in Hill, the
Sixth Circuit Court of Appeals applied the same approach. Although these cases are persuasive,
they are not binding on this court.5 See Gibbard v. Potter, No. 5:05CV44, 2006 WL 1744176, at

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The Petitioner is borrowing language from Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).
Petitioner argues throughout his Petition that this Court should apply principles from persuasive courts, but he fails
to rely on mandatory precedent. See (ECF No. 20)

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*2 (W.D.N.C. Jun. 22, 2006); Long v. United States, 339 F. Supp. 2d 729, 735 n.3 (E.D. Va.
2004). Petitioner’s argument that Descamps should be applied retroactively is thus unfounded.
Petitioner also argues that an “erroneously-imposed” statutory minimum sentence
enhancement for a career offender “can be redressable” under the savings clause in § 2255(e).
(ECF No. 20 p. 11). Specifically, he argues that “there is no textual indication that § 2255(e)
precludes a challenge to an erroneous enhanced sentence.” (ECF No. 20 p. 6). However, the
Fourth Circuit has noted that “savings clause relief is foreclosed for an erroneous sentence within
the statutory maximum, even if the sentence was imposed pursuant to a mandatory guidelines
regime.” Darden v. Stephens, No. 10-7496, 2011 WL 1625094, at *3 n.2 (4th Cir. Apr. 29,
2011). In Darden, the petitioner argued that a recent Supreme Court holding “rendered one of his
prior convictions no longer a crime of violence,” and thus it was “not a proper predicate” for his
sentence enhancement. Darden, 2011 WL 1625094, at *1. The court rejected the petitioner’s
argument and declined to “extend the reach of §2255’s savings clause,” stating, “our cases have
confined the § 2255 savings clause to instances of actual innocence of the underlying offense of
conviction.” Darden, 2011 WL 1625094, at *2 n.2 (emphasis added). Therefore, Petitioner’s
argument is unfounded.
The remainder of Petitioner’s assertions in his objection to the Report (ECF No. 20) are
aimed at discrediting the length of his sentence; he is not claiming innocence. Therefore,
Petitioner cannot invoke the § 2255 savings clause, and thus he may not proceed under § 2241.
See, e.g., Darden, 2011 WL 1625094, at *2 n.2.
III.

CONCLUSION
After carefully reviewing the applicable laws, the record in this case, as well as the

Report, this Court finds the Magistrate Judge’s recommendation fairly and accurately
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summarizes the facts and applies the correct principles of law. Accordingly, the Court ADOPTS
the Report and Recommendation (ECF No. 17). Dorise’s Petition is thus dismissed without
prejudice and without requiring the respondent to file a return.

IT IS SO ORDERED.

November 9, 2017
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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