Jones v. Rivera

Filing 18

ORDER RULING ON REPORT AND RECOMMENDATION. This court determines that the Magistrate Judges recommended disposition is correct and the Report and Recommendation 11 is incorporated herein by reference. Accordingly, this action is dismissed without prejudice. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 08/19/2013. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

James Howard Jones,

)
)
Petitioner,
)
)
v.
)
)
Mildred L. Rivera, Warden,
)
)
Respondent.
)
______________________________________ )

C/A No. 4:12-2062-JFA-TER

ORDER

The pro se petitioner, James Howard Jones, is an inmate with Federal Correctional
Institution at Estill, South Carolina. He brings this action pursuant to 28 U.S.C. § 2241
challenging his 1997 conviction in the United States District Court for the Northern District
of Georgia. He contends that he was improperly charged under 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii) because he is actually innocent of his Section 851 conviction.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation and opines that the action should be summarily dismissed because the
petitioner is seeking relief from his conviction and such relief is available, if at all, under 28
U.S.C. § 2255. The Report sets forth in detail the relevant facts and standards of law on this
matter, and the court incorporates such without a recitation and without a hearing.
1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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).

1

The petitioner was advised of his right to file objections to the Report and
Recommendation and he filed timely objections thereto. Thus, this matter is ripe for review.
As the Magistrate Judge notes in his Report, the petitioner is seeking relief from his
conviction under § 841 and such relief is available, if at all, under 28 U.S.C. § 2255. To the
extent that petitioner asserts his petition under § 2241 is available to him under the Savings
Clause of 28 U.S.C. § 2255(e), as interpreted by In re Jones, 266 F.3d 328, 333–34 (4th Cir.
2000), the Magistrate Judge concludes that § 2241 is unavailable to the petitioner because
he can meet none of the Jones criteria. This court agrees and finds that it does not have
jurisdiction to entertain petitioner’s § 2241 petition.
In his petition, Jones contends that “the Supreme Court narrowed the Controlled
Substance Act by interpreting the term ‘felony drug offense’ in 21 U.S.C. § 802(44) to
decriminalize certain individuals who would otherwise be qualifying repeat offenders under
the CSA–it altered the class of persons that the law punishes.” He asserts that he is actually
innocent of his § 851 enhancement. He does not state in his petition what his prior offense
was, nor does he cite to any specific changes in the law that would support his argument.
In his objection memorandum, the petitioner contends that he has met the Jones test
because subsequent to his first § 2255 petition filed in the District of Georgia, the substantive
law changed such that he received a punishment that the law cannot impose upon him. He
then refers, for the first time, to the Supreme Court case of Carachuri-Rosendo v. Holder,
130 S.Ct. 2577 (2010). He also contends that as a result of United States v. Simmons, 649
F.3d 243, that Carachuri-Rosendo is applicable to his case. Finally, petitioner states that he
2

has received punishment for an offense under § 851 of the CSA, but that the § 851 offense
was not charged on the face of the indictment in violation of Fed. R. Crim. P. 3, and thus the
sentencing court lacked jurisdiction over him.
The petitioner objects to the Report contending that he does satisfy the second prong
of the Jones rule because the Supreme Court decided Carachuri subsequent to the
petitioner’s first § 2255 petition. He contends that because he has already filed a § 2255
petition, it is ineffective or inadequate to test the legality of his detention. He relies on the
case of Rice v. Rivera 617 F.3d 802 (4th Cir. 2010), and United States v. Simmons, 649 F.3d
2378 (4th Cir. 2011).
The petitioner’s arguments fail, however, because the Supreme Court did not make
Carachuri-Rosendo retroactive to cases on collateral review.

Thus, the petitioner’s

objections are overruled.
The court has carefully reviewed all of the objections made by the petitioner and has
conducted the required de novo review. This court determines that the Magistrate Judge’s
recommended disposition is correct and the Report and Recommendation is incorporated
herein by reference.
Accordingly, this action is dismissed without prejudice.
Because the petitioner has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2).2

2

A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by demonstrating that
reasonable jurists would find both that his constitutional claims are debatable and that any dispositive

3

IT IS SO ORDERED.

August 19, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001).

4