Brooks v. Bragg
ORDER RULING ON REPORT AND RECOMMENDATION: This Court adopts the Report and Recommendation (Dkt. No. 12 ) as the order of the Court. The habeas petition is dismissed with prejudice. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 10/6/2017. (prou, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Marcellus Raynard Brooks,
Warden Travis Bragg
Case No 5: 17-cv-1674
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation ("R. & R. ") of the
Magistrate Judge (Dkt. No. 12) recommending that this Court dismiss Petitioner' s habeas
petition with prejudice because the shortcomings evident in the pleadings cannot be corrected by
amendment. For the reasons set forth below, this Court adopts the R. & R. as the order of the
Court. The habeas petition is dismissed with prejudice.
Background and Factual Summary
Petitioner Marcellus Brooks pleaded guilty to being a felon in possession of a firearm and
ammunition on October 13, 2009. Petitioner was sentenced to 210 months in prison as an armed
career offender under 18 U.S.C. § 924(e) (the Armed Career Criminal Act, "ACCA").
Petitioner's appeal was unsuccessful and he did not file a motion pursuant to 28 U.S.C. § 2255 .
Petitioner has now filed a prose petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 ,
claiming that he is "legally and factually innocent" of being an armed career offender based on
the Supreme Court' s decision in Mathis v. United States, 136 S. Ct. 2243 (2016). He also claims
that some of his previous convictions were improperly used to support his ACCA sentence
enhancement based on the Supreme Court' s decision in Descamps v. United States, 133 S. Ct.
The Magistrate Judge explained that Petitioner's § 2241 Petition is subject to summary
dismissal because defendants convicted in federal court are obliged to seek habeas relief through
§ 2255 unless they are able to satisfy the § 2255 savings clause. (Dkt. No . 12 at 3.) Pursuant to
the savings clause, "An application for a writ of habeas corpus on 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 the remedy by motion is
inadequate or ineffective to test the legality of his detention." 28 U.S .C. § 2255(e).
Petitioner did not file a § 2255 motion in this criminal matter, and the time to do so has
now expired. (Id. at 3-4.) The Magistrate Judge explained that it is settled that "the remedy
afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has
been unable to obtain relief under that provision, or because an individual is procedurally barred
from filing a § 2255 motion." In re Vial, 115 F .3d 1192, 1194 n.5 (citations omitted).
The Magistrate Judge also explained that Petitioner cannot satisfy the criteria set forth by
the Fourth Circuit to determine whether a § 2255 motion would be inadequate or ineffective to
test the legality of a prisoner's detention because Petitioner cannot demonstrate that the conduct
for which he was convicted has been deemed non-criminal by any substantive change in the law,
and the cases he relies on do not apply retroactively in the Fourth Circuit. (Id. at 4-5.) Finally, the
Magistrate Judge recommended that Petitioner's habeas petition be dismissed because he has
failed to state a valid claim of actual innocence, and the Fourth Circuit has not extended the
reach of the § 2255 savings clause to prisoners, such as Petitioner in this case, who challenge
only their sentences. (Id. at 5.)
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't ofSocial Services, 901F.2d387 (4th Cir. 1990).
b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de novo determination of those portions of the R. & R. to which specific objection is
made. Fed. R. Civ. P. 72(b)(2). Additionally, 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. §
Where the plaintiff fails to file any specific objections, "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." See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).
Petitioner has filed timely objections to the Magistrate's R. & R. (Dkt. No. 20.) He claims
that he has satisfied the § 2255 savings clause and should be allowed to proceed under § 2241.
Although Petitioner has specifically objected to the recommendations in the R. & R., he relies
primarily on precedents from other circuits without addressing the various Fourth Circuit cases
that the Magistrate Judge explained preclude him from seeking relief under § 2241. See Jn re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) ("the remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because an individual has been unable to obtain relief under that
provision, or because an individual is procedurally barred from filing a § 2255 motion."); Jn re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (in order to challenge the validity of a conviction or
sentence based on new law, a petitioner must show: "(1) at the time of conviction, settled law of
this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the
prisoner' s direct appeal and first § 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner
cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of
constitutional law."); Stewart v. United States, No. ELH-17-1408 , 2017 WL 2361089, at *5 (D.
Md. May 31 , 2017) (§2255 case collecting cases holding that neither Descamps nor Mathis is
retroactive); Farrow v. Revell, No. 13-6804, 2013 WL 5546155 (4th Cir. Oct. 9, 2013)
(challenge to armed career criminal status not cognizable under § 2241 ).
Having reviewed these issues de nova, the Court has determined that the Magistrate
Judge correctly applied the controlling law to the facts of this case. Other district courts in this
Circuit have considered claims similar to Petitioner's and reached the same conclusion. See
Brandon v. Wilson, No. 3:16CV142, 2017 WL 707497, at *5 (N.D.W. Va. Jan. 30, 2017)
("Brandon cannot establish that the conduct for which he was actually convicted, being a felon in
possession of a firearm and ammunition, is no longer criminal" so "he is not entitled to proceed
under§ 2241."); Stuckey v. Bragg, No. 517CV01573HMHKDW, 2017 WL 3669618, at *3
(D.S.C . July 31 , 2017), report and recommendation adopted, No . CV 5:17-1573-HMH-KDW,
2017 WL 3650706 (D.S.C. Aug. 24, 2017) (similar).
For the reasons stated above, this Court adopts the R. & R. (Dkt. No. 12) as the order of
the Court. The habeas petition is dismissed with prejudice.
AND IT IS SO ORDERED.
United States District Court Judge
October _[L, 2017
Charleston, South Carolina
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