Robinson v. Meeks

Filing 22

ORDER adopting 14 Report and Recommendation. This action is Dismissed without prejudice. In addition, the court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 6/10/16. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Everett Bernard Robinson, #16590-064,
Petitioner,
v.
Bobby Meeks,
Respondent.

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Civil Action No. 8:15-4277-TMC

ORDER

Petitioner, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner was sentenced in the District Court for the Western
District of Oklahoma, and was, at the time this motion was filed, confined at the Williamsburg
Federal Correctional Institution in Salters, South Carolina.

Petitioner alleges that he was

improperly sentenced as an armed career criminal and cites to Johnson v. United States, 560 U.S.
2551 (2015).
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter
was referred to a magistrate judge for pretrial handling. Before the court is the magistrate
judge’s Report and Recommendation (“Report”), recommending that Petitioner’s petition be
dismissed without prejudice and without requiring Respondent to file an answer or return. (ECF
No. 14). Petitioner filed timely objections. (ECF No. 17).
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, 27071 (1976). The court 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). In that
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case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
“[I]t is well established that defendants convicted in federal court are obliged to seek
habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d
802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). A petitioner
cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the 2255
savings clause which provides:
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 the remedy by
motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e).
Section 2255 relief is inadequate or ineffective 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.
In re Jones, 226 F.3d 328, 329 (4th Cir. 2000).

The court finds that when the Report was filed and Petitioner’s objections were filed, a
remedy under § 2255 arguably may not have been available. However, the United States
Supreme Court has since ruled in Welch v. United States, 136 S. Ct. 1257 (2016), that Johnson
announced a new constitutional rule that applies retroactively. Thus, a remedy under § 2255 is
now available. Because Petitioner can obtain the relief he seeks using a § 2255 motion if he is
entitled to it, the court lacks jurisdiction to consider the § 2241 motion. See 28 U.S.C. § 2255(e);
In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000). The court notes that it appears that after
obtaining authorization from the Tenth Circuit Court of Appeals, Petitioner filed a § 2255 motion

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in the sentencing court on May 20, 2016. Robinson v. United States, No. 5:07-cr-72 (W.D. Okla.
2016).
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the court finds Petitioner's objections are without merit and adopts the Report
(ECF No. 14). Accordingly, this action is DISMISSED without prejudice.
In addition, 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
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
June 10, 2016
Anderson, South Carolina

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