Simpson v. Antonelli

Filing 26

ORDER adopting the 20 Report and Recommendation, granting the Respondent's 14 motion to dismiss, and declining to issue a certificate of appealability. Signed by Honorable Timothy M. Cain on 9/24/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
IRVIN LAMAR SIMPSON,
#53679-019,
Petitioner,

vs.

B.M. ANTONELLI,
Warden, FCI Williamsburg,
Respondent.

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Civil Action No. 1:18-cv-1072-TMC

ORDER

Petitioner Irvin Lamar Simpson (“Simpson”), a federal prisoner proceeding pro se, filed
this action pursuant to 28 U.S.C. § 2241, seeking relief from the 360-month sentence he received
in connection with his conviction on federal narcotics charges. (ECF No. 1).* Respondent moved
to dismiss (ECF No. 14), and Simpson filed a response (ECF No. 19). The motion was referred to
a United States Magistrate Judge for review pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2) (D.S.C.). On August 21, 2018, the magistrate judge issued a Report and
Recommendation (“Report”) (ECF No. 20) recommending that Respondent’s Motion to Dismiss
(ECF No. 14) be granted. Simpson filed objections to the Report in a timely fashion. (ECF No.
22).
A magistrate judge makes only a recommendation to the court. The Report has no
presumptive weight and the responsibility to make a final determination in this matter remains
with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with

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Simpson initially asserted a second claim in his § 2241 petition, objecting to his cell assignment
at the Federal Correctional Institution in Williamsburg, South Carolina. (ECF No. 1 at 7).
Subsequently, he withdrew this claim. (ECF No. 19 at 1).

making a de novo determination of those portions of the Report 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 with instructions. See 28 U.S.C. § 636(b)(1). “[I]n the
absence of a timely filed objection, a district court need not conduct a de novo review, but instead
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) (internal quotation marks omitted). The court likewise need not conduct a de novo review
when a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). The failure to file specific written objections to the Report results
in a party’s waiver of the right to appeal the district court’s judgment based upon that
recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
I. Background/Procedural History
On October 2, 2004, Simpson was convicted by a jury in the Northern District of Georgia
of (1) possessing with intent to distribute, and distributing, cocaine base (count one), and (2)
possessing with intent to distribute at least five grams of cocaine base (count two). See United
States v. Simpson, No. 2:02-cr-52 (N.D. Ga. Dec. 6, 2002) at ECF No. 39. The district court
imposed a 240-month term of imprisonment on count one and a 360-month term of imprisonment
on count two, to be served concurrently. Id. at ECF No. 47. In imposing this sentence, the district
court determined Simpson to be a career offender under the United States Sentencing Guidelines
(the “Guidelines” or “U.S.S.G.”) and applied U.S.S.G. § 4B1.1. Simpson then unsuccessfully
sought relief on direct appeal. See United States v. Simpson, 82 F. App’x. 218 (11th Cir. Sept. 19,
2003) (unpublished table decision), cert. denied, 541 U.S. 980 (2004).
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In May 2004, Simpson filed a motion for relief under 28 U.S.C. § 2255, raising a number
of issues. The district court denied relief, see United States v. Simpson, 2010 WL 399315 (N.D.
Ga. Jan. 27, 2010), but granted a certificate of appealability as to Simpson’s claim that trial counsel
provided him ineffective assistance by failing to pursue a motion to suppress a portion of the crack
cocaine introduced against him at trial, see United States v. Simpson, 2010 WL 1328621 (N.D. Ga.
Mar. 29, 2010). The Eleventh Circuit Court of Appeals affirmed the denial of Simpson’s § 2255
motion, see Simpson v. United States, No. 2:02-CR-0052, (ECF No. 140), and the Supreme Court
denied his certiorari petition, see Simpson v. United States, 565 U.S. 854 (2011).
Simpson then made several attempts to challenge his sentence on collateral review. On
March 23, 2015, Simpson filed his first habeas petition under 28 U.S.C. § 2241 seeking relief
based on United States v. Booker, 543 U.S. 220 (2005). See Simpson v. Masters, 2016 WL
2940082, at *2 (S.D.W. Va. Apr. 6, 2016). The district court denied relief and dismissed
Simpson’s petition. See Simpson v. Masters, 2016 WL 2939512 (S.D.W. Va. May 19, 2016). In
May 2015, Simpson unsuccessfully moved for a sentence reduction under Guidelines Amendment
782. See United States v. Simpson, No. 2:02-cr-52 (N.D. Ga. Dec. 6, 2002) at ECF No. 152
(concluding that Amendment 782 did not apply to reduce sentences imposed under the career
offender guideline). And, in May 2016, Simpson moved for a writ of audita querela, see id. at
ECF No. 153, which was denied by the district court, see id. at ECF No. 154.
Finally, Simpson filed the instant § 2241 petition to challenge his sentence. Mindful of the
liberal construction requirement, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the court discerns
two distinct claims in Simpson’s pro se petition. First, Simpson contends that his sentence should
be vacated because it was imposed under an unconstitutional “mandatory guideline scheme.”
(ECF No. 1 at 6). In elaborating on this claim, Simpson asserts that his sentence was imposed

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“pre-Booker” pursuant to 18 U.S.C. § 3553(b), which, at the time of his sentencing, required
district courts to impose a sentence within the range set by the Guidelines—a scheme that no longer
passes constitutional muster. (ECF No.1 at 7). Second, Simpson contends that in handing down
his sentence in 2004, the district court erroneously designated him as a career offender under
U.S.S.G. § 4B1.1 because he has only “one qualifying prior Georgia state conviction” instead of
the requisite two prior felonies. Id.
Respondent moved to dismiss, arguing in part that Simpson may seek relief under § 2241
only if he can show that a § 2255 motion would be “inadequate or ineffective” to raise his
challenge. 28 U.S.C. § 2255(e); see ECF No. 15. Simpson is unable to make this showing,
Respondent argued, “because Booker is not retroactively available to cases on collateral review,”
(ECF No. 15 at 7), as required by United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Respondent did not expressly address Simpson’s claim regarding his career offender status.
In response, Simpson contended his claim that he is serving unconstitutional sentence does
not rest on Booker; rather, Simpson asserted that the mandatory Guidelines sentence he received
simply rests on a “constitutional infirmity” that is “manifest.” (ECF No. 19-1 at 2). Simpson
would, therefore, have the court conclude that Booker’s non-retroactivity poses no impediment to
his challenge. Simpson also reasserted the challenge to his designation as a career offender under
U.S.S.G. § 4B1.1 and noted that Respondent had failed to address this aspect of his petition.
II. Discussion
In her Report, the magistrate judge correctly observed that in order to file a habeas petition
under § 2241, Simpson must satisfy the requirements of the savings clause set forth in § 2255:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him relief, unless it also appears that
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the remedy by motion is inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255(e) (emphasis added); see Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)
(“[D]efendants convicted in federal court are obliged to seek habeas relief from their convictions
and sentences through § 2255,” and “[i]t is only when § 2255 proves inadequate or ineffective to
test the legality of detention, that a federal prisoner may pursue habeas relief under § 2241.”
(internal quotation marks omitted)). The requirements of the savings clause are jurisdictional. See
Rice, 617 F.3d at 806-07 (explaining that “when a federal prisoner brings a § 2241 petition that
does not fall within the scope of the savings clause, the district court must dismiss the unauthorized
habeas motion for lack of jurisdiction”).
The Fourth Circuit recently made clear that the savings clause of § 2255 “provides an
avenue for prisoners to test the legality of their sentences”—not just their convictions—“pursuant
to § 2241.” Wheeler, 886 F.3d at 428. And, as the magistrate judge rightly noted, the Fourth
Circuit articulated in Wheeler a new savings clause test for determining whether § 2255 is
“inadequate and ineffective” to test the legality of a sentence:
§ 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at
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 is unable to
meet the gatekeeping provisions of § 2255(h)(2) for 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.
Id. at 429.
Applying Wheeler’s savings clause test, the magistrate judge concluded that Simpson
failed to satisfy the test’s second prong because he “provided no law demonstrating that there had
been a change in the settled substantive law that has been deemed to apply retroactively.” (ECF

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No. 20 at 6). The magistrate judge further concluded that “[w]ithout showing a retroactive change
in the substantive settled law, [Simpson] is unable to show that his sentence now presents a
sufficiently grave error such that it is fundamentally defective.” Id. at 6-7. Based on those
grounds, the magistrate judge recommended that the court grant Respondent’s motion to dismiss
the § 2241 petition for lack of jurisdiction.
Simpson filed what purports to be two objections to the Report. (ECF No. 22). The
objections contain various overlapping and redundant assertions. Construing the document
liberally, the court will address each assertion as a discrete, stand-alone objection. First, Simpson
contends that the Report “mischaracterized” and “re-cast” the claims raised in his § 2241 petition
as dependent on Booker. (ECF No. 22 at 5-6). This objection is merely a restatement of the
argument he raised in response to the Respondent’s motion to dismiss. But Simpson’s petition
challenges the legality of his sentence expressly because it was imposed under a “mandatory
guideline scheme,” (ECF No.1 at 6-7), which Booker established was unconstitutional. Thus,
Simpson’s challenge to the mandatory nature of his sentence clearly rests on Booker. And, as it is
well-established that Booker is not retroactively available on collateral review, see United States
v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), Simpson’s claim based on the mandatory sentencing
scheme is outside of the savings clause, see Wheeler, 886 F.3d at 429.
Second, Simpson objects to the Report’s conclusion that he failed to identify the
substantive law that has been changed and deemed retroactively applicable on collateral review,
as required by Wheeler’s second prong. In support of his position, Simpson offers Brown v.
Caraway, 719 F.3d 583 (7th Cir. 2013), and Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), which
both permitted § 2241 petitioners to challenge their pre-Booker career-offender designations via
the § 2255 savings clause. Simpson fails to understand, however, that in both cases, the petitioner

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had identified a “subsequent, retroactive change” in the substantive law that disqualified one of
the petitioner’s previous convictions as “a predicate offense for a career-offender enhancement.”
Hill, 836 F.3d at 600; see Brown, 719 F.3d at 585. Simpson has repeatedly failed in his filings to
identify and explain the subsequent retroactive change in substantive law that resulted in him
having only “one qualifying prior Georgia state conviction” instead of the requisite two prior
felonies under U.S.S.G. § 4B1.1. Simpson’s reliance on such a general and conclusory assertion
is insufficient to defeat Respondent’s motion to dismiss.
Finally, Simpson objects to the magistrate judge’s statement that because he failed to show
“a retroactive change in the substantive settled law,” he cannot show “that his sentence now
presents a sufficiently grave error such that it is fundamentally defective.” (ECF No. 20 at 6-7).
Simpson cites Wheeler and various other decisions for the general proposition that a sentence
based on an incorrect career-offender designation can amount to a fundamentally defective
sentence. This objection is without merit for the reasons previously noted by the court. Simpson
must first identify the substantive legal change at issue before the court can proceed to determine
whether the ostensible change in law created a grave error resulting in a fundamentally defective
sentence. The court therefore finds this objection to be without merit.
III. Conclusion
After a thorough review of the Report and the record in this case, the court adopts the
magistrate judge's Report (ECF No. 20) and incorporates it herein. Accordingly, having concluded
that it lacks jurisdiction, the court GRANTS Respondent’s motion to dismiss Simpson’s § 2241
petition.
Additionally, a certificate of appealability will not issue to a prisoner seeking habeas relief
absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A

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prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his
constitutional claims are debatable and that any dispositive procedural rulings by the district court
are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252
F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the petitioner has failed to make a
substantial showing of the denial of a constitutional right. Accordingly, the court declines to issue
a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
September 24, 2018
Anderson, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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