Davis v. Warden RS Dunbar

Filing 21

ORDER RULING ON 13 REPORT AND RECOMMENDATION The court adopts the Report's factual and procedural background and the recommendation offered therein but for different reasons than set forth in the Report. As a result, the petition is DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file an answer or return. It is further ordered that a certificate of appealability is denied. Signed by Honorable Sherri A Lydon on 11/13/23. (rweb, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Mark Ronnell Davis,

C/A: 8:23-cv-307-SAL

Petitioner,
v.
ORDER
Warden RS Dunbar,

Respondent.

Petitioner Mark Ronnell Davis is a prisoner in the custody of the Federal Bureau of Prisons,
who is currently incarcerated in South Carolina at the Williamsburg Federal Correctional
Institution. [ECF No. 1.] He has filed this action under 28 U.S.C. § 2241 seeking habeas corpus
relief from his conviction and sentence. This matter is before the court on the Report and
Recommendation (the “Report”) issued by United States Magistrate Judge Jacquelyn D. Austin,
made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.),
recommending the petition be dismissed because the court lacks jurisdiction. [ECF No. 13.]
Attached to the Report was a notice advising Plaintiff of the procedures and requirements for filing
objections to the Report and the serious consequences if they failed to do so. Id. at 19. Plaintiff
has not filed objections, and the time for doing so has expired.1
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 this

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Petitioner filed a motion for a copy of the Report, claiming the copy he received was corrupted
by the prison mailroom. [ECF No. 17.] On October 3, 2023, the court granted the motion, sent
Petitioner another copy of the Report, and gave him until October 17, 2023 to file objections. [ECF
Nos. 19, 20.] He has not filed objections as of this date.
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court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a
de novo determination of only those portions of the Report that have been specifically objected to,
and the court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1).
In the absence of objections, the court is not required to provide an explanation for adopting the
Report and must “only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s note).
After reviewing the Report, the applicable law, and the record of this case in accordance
with the above standard, the court accepts the recommendation by the magistrate judge but based
on newly decided case law. The court adopts the Report’s summary of the background and
procedural history of this case. The magistrate judge recommended dismissing the § 2241 petition
because Petitioner had not satisfied the savings clause tests announced in In re Jones, 226 F.3d
328, 333 (4th Cir. 2000), or United States v. Wheeler, 886 F.3d 426, 429 (4th Cir. 2018). [ECF
No. 13 at 18.] Thus, the magistrate judge concluded “this Court is without jurisdiction to consider
the Petition.” Id. The magistrate judge correctly applied the law that was available at the time she
issued her Report in March 2023, but in June 2023, the Supreme Court issued an opinion in Jones
v. Hendrix, 599 U.S. ---, 143 S. Ct. 1857, (2023), and Jones abrogates some of the Fourth Circuit
law relied on by the magistrate judge.
In Jones, the Supreme Court held “that § 2255(e)’s savings clause does not permit a
prisoner asserting an intervening change in statutory interpretation to circumvent [the
Antiterrorism and Effective Death Penalty Act of 1996]’s restrictions on second or successive §
2255 motions by filing a § 2241 petition.” 143 S. Ct. 1857, 1864. Petitioner also may not challenge

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his § 922(g)(1) conviction based on Rehaif2 through a § 2241 petition by way of § 2255(e)’s saving
clause. Thus, the court follows the ultimate recommendation of the magistrate judge but based on
case law that was not available at the time the Report issued.
For these reasons, the court adopts the Report’s factual and procedural background and the
recommendation offered therein but for different reasons than set forth in the Report. [ECF No.
13.] As a result, the petition is DISMISSED WITHOUT PREJUDICE and without requiring
Respondent to file an answer or return.
It is further ordered that a certificate of appealability is denied because Petitioner has failed
to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).3
IT IS SO ORDERED.

November 13, 2023
Columbia, South Carolina

Sherri A. Lydon
United States District Judge

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Rehaif v. United States, 139 S. Ct. 2191 (2019).
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). 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). In the instant matter, the court finds that Petitioner has failed to
make “a substantial showing of the denial of a constitutional right.”
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