Davis v. United States of America
ORDER adopting 6 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on November 30, 2017.(nkni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Gary Lewis Davis, #08282-058,
Warden, F.C.I. Williamsburg,
C.A. No.: 1:17-cv-2222-PMD-SVH
This matter is before the Court on Petitioner Gary Lewis Davis’ objections to Magistrate
Judge Shiva V. Hodges’ report and recommendation (“R & R”) (ECF Nos. 10 & 6). The
Magistrate Judge recommends that the Court dismiss Petitioner’s 28 U.S.C. § 2241 petition (ECF
No. 1). For the reasons stated herein, the Court overrules Petitioner’s objections, adopts the R &
R, and dismisses Petitioner’s § 2241 petition.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This Court must conduct a de novo
review of any portion of the R & R to which a timely, specific objection is made, and the Court
may accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or
in part. Id. Additionally, the Court may receive more evidence or recommit the matter to the
Magistrate Judge with instructions. Id. A party’s failure to object is taken as the party’s agreement
with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140 (1985). Absent a
timely, specific objection—or as to those portions of the R & R to which no specific objection is
made—this Court “must ‘only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Petitioner seeks resentencing following his drug trafficking and firearm convictions. The
Magistrate Judge recommends that Petitioner’s petition be summarily dismissed, without
prejudice, because the “savings clause” in 28 U.S.C. § 2255(e) does not allow him to challenge his
conviction or sentence under § 2241. Specifically, the Magistrate Judge found that Petitioner could
not satisfy the second criterion used to evaluate the applicability of the savings clause under In re
Jones, 226 F.3d 328 (4th Cir. 2000). Jones requires a petitioner invoking the savings clause to
establish that “the substantive law changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal.” Id. at 334. If a petitioner cannot establish that his claim
is within the scope of the savings clause, the court must dismiss motion for lack of jurisdiction.
See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Petitioner raises two objections, and both restate arguments presented to, and properly
evaluated by, the Magistrate Judge. First, Petitioner argues that he has satisfied the savings clause
because of the Supreme Court’s ruling in Dean v. United States, 137 S. Ct. 1170 (2017). In Dean,
the Court held that nothing in 18 U.S.C. § 924(c) prevents a district court from considering the
statute’s imposition of a mandatory minimum when calculating an appropriate sentence for the
predicate offense. Id. at 1178. While it is possible that Petitioner would have received a shorter
total sentence had he been sentenced after Dean’s clarification of the district court’s sentencing
discretion, Dean did not change substantive law to make the conduct of which Petitioner was
convicted any less criminal. Thus, the Dean decision does not aid Petitioner in establishing the
second prong of the Jones test.
Petitioner also argues that his indictment was invalid because Count 16, one of his 18
U.S.C. § 924(c) firearms charges, was impermissibly duplicitous because it alleged he used and
carried a firearm in relation to two different underlying offenses. Petitioner points to United States
v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010), for the assertion that a duplicity claim can
sometimes be raised after trial. In Robinson, the Fourth Circuit considered a defendant’s motion
for new trial under Rule 33 of the Federal Rules of Criminal Procedure, following the discovery
of new evidence. Id. at 948. With respect to the defendant’s duplicity claim, the court first
emphasized that Rule 12(b)(3) of the Federal Rules of Criminal Procedure requires objections to
indictments to be made before trial, though the Rules also allow a court to consider an objection
later, if good cause is shown. Id. at 957. The court noted that some circuits have nonetheless
reviewed post-trial duplicity claims for plain error. Id. “Out of an abundance of caution,” the
court then reviewed the defendant’s duplicity claim for plain error and rejected it. Id. While
Robinson does indicate that defendants or petitioners might, in some circumstances, be able to
bring a post-trial duplicity claim, it did not create a new procedural mechanism to do so. Unlike
the defendant in Robinson, Petitioner’s duplicity claim comes in a § 2241 petition, so he must still
satisfy the savings clause. While Robinson also dealt with a § 924(c) charge, Petitioner has not
established that it changed the substantive law of § 924(c). Since Petitioner has not established a
change in substantive law, as required by Jones, he has not established that the savings clause
applies. Consequently, the Court does not have jurisdiction to evaluate his petition.
For the foregoing reasons, it is hereby ORDERED that Petitioner’s objections are
overruled, that the R & R is ADOPTED, and that Petitioner’s petition is therefore DISMISSED.
AND IT IS SO ORDERED.
November 30, 2017
Charleston, South Carolina
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