Sellers v. Dobbs

Filing 49

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections and adopts and incorporates by reference the Magistrate Judge's R & R, ECF No. 40 . Accordingly, the Court GRANTS Respondent's motion for summary judgment, ECF No. 32 , and DISMISSES Petitioner's § 2241 petition. IT IS SO ORDERED. Signed by Chief Judge R Bryan Harwell on 9/7/2021. (prou, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Fredrick L. Sellers,

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Petitioner,
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v.
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Bryan K. Dobbs, Warden,
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Respondent.
)
____________________________________)

Civil Action No.: 5:20-cv-01683-RBH

ORDER

Petitioner, a federal prisoner proceeding pro se, commenced this action by filing a habeas
petition pursuant to 28 U.S.C. § 2241. See ECF No. 1. Currently pending is Respondent’s motion
for summary judgment. ECF No. 32. This motion is before the court with the Report and
Recommendation of Magistrate Judge Kaymani D. West, filed on July 7, 2021.1 ECF No. 40.
In the Report and Recommendation, the Magistrate Judge recommended granting
Respondent’s motion for summary judgment concluding that the court lacks jurisdiction to consider
Petitioner's § 2241 petition as he cannot show that a motion to vacate under 28 U.S.C. § 2255 is
inadequate to test the legality of his sentence. On July 29, 2021, Petitioner filed objections to the
Magistrate Judge’s Report and Recommendation. ECF No. 46.
Legal Standards
I.

Review of the R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct

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This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and Local
Civil Rule 73.02.

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a de novo review of those portions of the R & R to which specific objections are made, and it may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which specific written objections have been filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not direct the
[C]ourt to a specific error in the [M]agistrate [Judge]’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of timely filed specific
objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for
adopting the Magistrate Judge’s recommendation. Camby v. Davis, 718 F.2d 198, 199–200 (4th
Cir. 1983). Failure to file timely objections constitutes a waiver of de novo review and a party’s
right to appeal this Court’s order. 28 U.S.C. § 636(b)(1); see Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); Carr v. Hutto, 737 F.2d 433, 434 (4th Cir. 1984).
II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When no genuine issue of any material fact exists, summary judgment is appropriate. See
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Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from
the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"Once the moving party has met [its] burden, the nonmoving party must come forward with
some evidence beyond the mere allegations contained in the pleadings to show that there is a
genuine issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture, unsupported speculation, or conclusory
allegations to defeat a motion for summary judgment. See Baber, 977 F.2d at 875. Rather, the
nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions,
interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Discussion
The Court agrees with the Magistrate Judge that the Court lacks jurisdiction to consider
Petitioner's § 2241 petition because Petitioner cannot show that § 2255 is inadequate to test the
legality of his conviction and sentence. Petitioner claims that his convictions under 18 U.S.C. §
922(g) of being a felon in possession of a firearm are invalid under the holding in Rehaif v. United
States, 139 S. Ct. 2191 (2019). Petitioner asks the Court to vacate his convictions and sentence.
ECF No. 1-2 at 9.
A prisoner generally must file a motion under § 2255 to collaterally attack the legality of his
detention under a federal conviction or sentence. 28 U.S.C. § 2255(a); Davis v. United States, 417
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U.S. 333, 343 (1974). A district court cannot entertain a petition for a writ of habeas corpus under §
2241 challenging a federal court judgment unless a motion pursuant to § 2255 is “inadequate or
ineffective to test the legality of [that inmate's] detention.” 28 U.S.C. § 2255(e) (“the savings
clause”); see United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); In re Jones, 226 F. 3d
328, 333 (4th Cir. 2000). “[T]he 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 (4th Cir. 1997).
The United States Court of Appeals for the Fourth Circuit has concluded that § 2255 is
inadequate and ineffective to test the legality of a conviction when:
(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.
Jones, 328 F.3d at 333-34.
Similarly, the Fourth Circuit has also established a savings clause test under § 2255 for a
petitioner who contests his sentence. Wheeler, 886 F.3d at 429. Section 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
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sufficiently grave to be deemed a fundamental defect.
Id. at 429.
A court lacks jurisdiction to consider a § 2241 petition unless the petitioner can satisfy the
conditions set forth above in Jones or Wheeler. See Asar v. Travis, No. 6:20-cv-00394, 2020 WL
1099391, at *5 (D.S.C. Feb. 10, 2020) (“Asar I”) (“To trigger the savings clause of § 2255(e) and
proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United
States v. Wheeler or In re Jones”), adopted by 2020 WL 3843638 (D.S.C. July 8, 2020) (“Asar II”).
“If any one of the requirements is not met, the court is deprived of jurisdiction and may not entertain
the petition to begin with.” Ledezma-Rodriguez v. Brecken, No. 7:18-cv-00268, 2019 WL 4644556,
at *2 (W.D. Va. Sept. 24, 2019) (quoting Wheeler, 886 F.3d at 425). Petitioner bears the burden of
proving subject matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Since Rehaif, several courts within the Fourth Circuit have held that Rehaif did not change
substantive law regarding convictions under 18 U.S.C. § 922(g). In other words, being a felon in
possession of a firearm is still illegal and remains a valid criminal offense. See, e.g., Allen v. Dobbs,
855 F. App'x 162, 163 (4th Cir. 2021); Asar II, 2020 WL 3843638, at *2 (“being a felon in
possession of a firearm remains a valid criminal offense”); Erby v. Breckon, No. 7:18-cv-00588,
2020 WL 1443154, at *7 (W.D. Va. Mar. 24, 2020) (citing cases); Hoffman v. Breckon, No.
7:18-cv-00265, 2020 WL 929589, at *9 (W.D. Va. Feb. 26, 2020) (same); Swindle v. Hudgins, No.
5:19-cv-300, 2020 WL 469660, at *2 (N.D. W. Va. Jan. 29, 2020) (“Here, the crimes for which
petitioner was convicted remain criminal offenses; accordingly, he cannot satisfy the second prong
of Jones.”); Taylor v. Huggins, No. 5:19-cv-291, 2019 WL 6481799, at *3 (N.D. W. Va. Nov. 5,
2019) (“Even if Petitioner satisfied the first and third elements of Jones, the crime for which he was
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convicted remains a criminal offense, and therefore, he cannot satisfy the second element of
Jones.”), adopted by 2019 WL 6467823 (N.D. W. Va. Dec. 2, 2019); Moss v. Dobbs, No.
8:19-cv-02280, 2019 WL 7284989, at *9 (D.S.C. Sept. 23, 2019) (“[T]he savings clause test in
Jones requires that subsequent to a 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. Here, no such change occurred.”), adopted by 2019 WL 5616884 (D.S.C. Oct. 31, 2019).
Petitioner cannot establish that § 2255 is inadequate because he fails to meet the second
prong of the Jones test for use of § 2255’s savings clause. Specifically, he cannot demonstrate that
the conduct for which he was convicted - being a felon in possession of a firearm - is no longer a
crime. See Jones, 328 F.3d at 334. Likewise, Petitioner cannot satisfy the second prong of the
Wheeler test. Wheeler, 886 F.3d at 429. The U.S. Supreme Court has not indicated that Rehaif was
retroactively applicable to cases on collateral review. Therefore, Petitioner may not proceed under §
2241.
Accordingly, this Court lacks jurisdiction over Petitioner's claim. See Wheeler, 886 F.3d at
423; see also Prince v. Warden of Bennettsville Fed. Corr. Inst., No. 8:20-cv-00823, 2020 WL
3318294, at *3 (D.S.C. Mar. 23, 2020) (“Because Petitioner cannot show that the conduct for which
he was convicted is no longer criminal, he cannot satisfy the second element of the savings clause
test and this Court lacks jurisdiction over his Petition.”), adopted by 2020 WL 3316088 (D.S.C.
June 18, 2020).
Conclusion
Based upon the foregoing, the Court overrules Petitioner’s objections and adopts and
incorporates by reference the Magistrate Judge’s R & R, ECF No. 40. Accordingly, the Court
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GRANTS Respondent’s motion for summary judgment, ECF No. 32, and DISMISSES Petitioner’s
§ 2241 petition.
IT IS SO ORDERED.
September 7, 2021
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
Chief United States District Judge

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