Inyangette v. Drew

Filing 24

ORDER RULING ON REPORT AND RECOMMENDATION 11 . Petitioners action is dismissed without prejudice. 20 Motion for Hearing filed by Ekere Inyangette is moot. Signed by Honorable Mary G Lewis on 9/25/2012. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
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vs.
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Darlene Drew
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Defendant.
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______________________________________ )
Ekere Inyangette
Plaintiff,

Civil Action No. 6:11-3401-MGL-KFM

OPINION AND ORDER

Ekere Inyangette a/k/a Michael Thomas (“Petitioner”) is a federal prisoner at FCI
Bennettsville, in Bennettsville, South Carolina. On December 19, 2011, Petitioner filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 1651 or § 2241(c)(3). ECF No. 1 at 2.
The petition purports to challenge the Petitioner’s 2003 conviction in the Superior Court of the
District of Columbia which was used to enhance the federal sentence Petitioner is currently serving
pursuant to a 2009 conviction in the United States District Court for the Eastern District of Virginia.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the action was
referred to a Magistrate Judge for review. On February 16, 2012, the Magistrate Judge filed a
Report and Recommendation in which he determined that the petition should be dismissed without
prejudice and without requiring the respondent to file an answer. ECF No. 11 at 11. Petitioner filed
objections to the Report and Recommendation. ECF No. 15.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged
with making a de novo determination of any portions of the Magistrate Judge's Report to which a
specific objection is made. The court may accept, reject, or modify, in whole or in part, the

recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge
with instructions. 28 U.S.C. § 636(b)(1). After conducting a de novo review of the objections made,
and considering the record, applicable law, and the Report and Recommendation of the Magistrate
Judge, the court agrees that this matter should be dismissed without prejudice.
As an initial objection here, Petitioner contends that the Magistrate Judge erred in stating
that Petitioner challenged the use of the 2003 Superior Court of the District of Columbia conviction
to enhance the Petitioner’s sentence as a career offender in a second §2255 motion. See ECF No.
15 at 1. Petitioner states that his second § 2255 motion to the United States District Court was based
on a 2000 Superior Court of the District of Columbia conviction and the Fourth Circuit’s ruling in
U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011). Id. This objection is of no consequence. In his
affidavit in support of his petition, Petitioner indicates that he is not attempting to invoke 28 U.S.C.
§ 2255 or a successive petition under 28 U.S.C.§ 2244. ECF No. 1-13 at 1-2. Petitioner filed two
§ 2255 motions in the United States District Court for the Eastern District of Virginia which were
denied. To the extent that petitioner asserts his petition under 28 U.S.C. § 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 concluded that this option is foreclosed as Petitioner
failed to meet the Jones criteria. This court agrees. Petitioner has not established that the previously
attempted mechanisms for relief available to him were inadequate or ineffective. Accordingly, in
this case Petitioner has not raised a claim that may be presented in a § 2241 petition.
Next, Petitioner takes issue with the Report and Recommendation’s characterization of the
petition for a writ of habeas corpus as an “attempt to relitigate an issue raised during the appellate
process.”

ECF No. 15 at 2. Petitioner’s objection is without merit. Petitioner’s objection

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specifically indicates that “Petitioner challenges an erroneous judgement [sic] entered by the District
of Columbia’s Court of Appeals” and “Petitioner seeks to have the erroneous judgement [sic]
entered by the Court of Appeals vacated.” ECF No. 15 at 2. Petitioner’s allegations of error were
addressed by the Superior Court of the District of Columbia and by appeal to the District of
Columbia Court of Appeals, which is the highest Court of the District of Columbia. This court is
without jurisdiction to review or overturn these rulings. Additionally, the Supreme Court of the
United States denied the petition for certiorari. Thomas v. U.S., 914 A.2d 1 (D.C. 2006), cert.
denied, 552 U.S. 895, 128 S. Ct. 241 (2007). Also, the petition provides no meritorious basis for
finding the local remedy under D.C. Code § 23–110 to be inadequate or ineffective. In short,
Petitioner cannot avail himself of this federal forum merely because his prior attempts to challenge
his conviction in the District of Columbia courts and in the Supreme Court of the United States have
been unsuccessful.
Finally, regarding the challenge of ineffectiveness of appellate counsel, Petitioner asserts
that the Magistrate Judge erred in stating that Petitioner has failed to move to recall the mandate and
therefore has not exhausted an alternative remedy. ECF No. 15 at 4. Petitioner does not allege that
he properly exhausted the available remedies before filing his petition for habeas corpus, instead
Petitioner asserts that § 2241 does not contain a statutory exhaustion requirement. ECF No. 15 at
4. This objection is also without merit. Although 28 U.S.C. § 2241 does not contain a statutory
exhaustion requirement, courts consistently require prisoners to exhaust their administrative
remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 490–91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); Timms v. Johns,
627 F.3d 525 (4th Cir.2010). This court cannot exercise habeas corpus power to grant Petitioner’s

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requested relief in light of the failure to exhaust local remedies. See Johnson v. Stansberry, No.
10–0178, 2010 WL 358521, at *2 (D.D.C. Jan. 29, 2010).
CONCLUSION
The court has carefully reviewed 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. Accordingly, the objections are overruled and Petitioner’s action is dismissed
without prejudice. In light of the Court's Order, all other pending motions are now MOOT.

IT IS SO ORDERED.
s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
September 25, 2012

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