Brown v. Cruz

Filing 24

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is therefore ORDERED that the petitioners § 2241 petition be dismissed without prejudice and without requiring the respondent to file a return. Signed by Honorable Bruce Howe Hendricks on 1/23/2015.(cwhi, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Civil Action No.: 9:13-cv-00551-BHH
Kenyatte Brown
Petitioner,
vs.
Opinion and Order
T. Cruz, Warden, FCI-Williamsburg,
Respondent.

This matter is before the Court upon the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 13), which recommends that the § 2241 petition
be dismissed without prejudice and without requiring the respondent to file a return.
For the reasons set forth below, the Court agrees with the Report and dismisses the
petitioner’s complaint without prejudice.
BACKGROUND
The petitioner Kenyatte Brown (“the petitioner”), a federal inmate at FCIWilliamsburg, who is proceeding pro se brought this action pursuant to 28 U.S.C.
§ 2241 seeking a reduction in his federal sentence. On April 12, 2004, the petitioner
was convicted of possession with intent to distribute less than five grams of cocaine
base and sentenced to 262 months of incarceration to be followed by six years of
supervised release. The petitioner’s 2005 appeal was unsuccessful, and the Court
granted the government’s motion for summary judgment on his § 2255 motion alleging
ineffective assistance of counsel.
On March 4, 2013, the petitioner filed this action pursuant to 28 U.S.C. § 2241.
The petitioner alleges that his sentence should be vacated because his prior state

convictions for possession with intent to distribute crack and cocaine should no longer
be considered “felonies” following the Supreme Court’s decision in Carachuri-Rosendo
v. Holder, 130 S. Ct. 2577 (2010) and the Fourth Circuit’s ruling in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011).
Pursuant to 28 U.S.C. § 636(b) (1)(B) and Local Civil Rule 73.02(B)(2)(d) DSC,
the case was assigned to Magistrate Judge Bristow Marchant. On May 8, 2013, the
Magistrate Judge issued a Report recommending that the § 2241 petition be dismissed
without prejudice and without requiring the respondent to file a return because the
cases upon which the petitioner relies have not been made retroactive and the
petitioner has not shown that a § 2255 is inadequate. The petitioner filed objections on
May 30, 2013 (ECF No. 16).
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–
71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and
the court 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).
The court is obligated to conduct a de novo review of every portion of the Report
to which specific 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

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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) ( “[D]e novo
review [is] unnecessary in . . . situations when a party makes general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendation.”). The court reviews only for clear error in the absence
of a specific objection. Furthermore, in the absence of a timely filed, specific objection,
the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). 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. § 636(b)(1). This Court
may also “receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
Under 28 U.S.C. § 1915(e)(2)(B), the Court shall dismiss a prisoner’s action if it
determines that the action: “(I) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” In reviewing these pleadings, the Court is mindful of
Plaintiff’s pro se status. This Court is charged with liberally construing the pleadings of
a pro se litigant. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).
The requirement of a liberal construction does not mean, however, that the Court can
ignore a plaintiff’s clear failure to allege facts that set forth a cognizable claim, or that a
court must assume the existence of a genuine issue of material fact where none exists.
See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).

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DISCUSSION
Upon review, the Court agrees with the Magistrate Judge that the petitioner’s
case should be dismissed. The petitioner’s objections provide no basis for this Court to
deviate from the Magistrate Judge’s recommended disposition.

As the Magistrate

Judge explained, the petitioner may only challenge the underlying validity of his
sentence through 28 U.S.C. § 2241 if he can satisfy the “savings clause” of 28 U.S.C.
§ 2255 by showing that § 2255 does not provide an adequate or effective remedy. The
Fourth Circuit Court of Appeals set forth a three-part test that a petitioner must satisfy
in order to make this showing and fall within the savings clause of § 2255. See In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).1 The Magistrate Judge correctly pointed
out that the second prong of the Jones test requires a petitioner to attack his
conviction, not merely his sentence.
The petitioner appears to concede that he is doing just the opposite -- attacking
his sentence instead of his conviction. (See ECF No. 16 at 3 (“[S]ubsequent to the
filing of [the petitioner’s] § 2255, the law underlying his conviction has not been
changed, making his instant offense of conviction unlawful. However, the law has
changed, making his instant sentence unlawful.”).) Nevertheless, he urges this Court
to apply the “legal reasoning and modified application of the Jones standard” used by
the District of Maryland in Poole v. Dotson, 469 F. Supp. 2d 329 (D. Md. 2007) rev'd

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“[W]e conclude 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 *334 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.”

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sub nom. United States v. Poole, 531 F.3d 263 (4th Cir. 2008).

The petitioner

acknowledges that the District Court’s ruling was promptly overturned by the Fourth
Circuit, but contends that the Court of Appeals based its ruling solely on the fact that
Maryland authorities were not Poole’s “immediate custodian.” As the Magistrate Judge
noted, however, footnote 7 of the Fourth Circuit’s opinion in Poole makes it very clear
that the savings clause does not apply “to those petitioners challenging only their
sentence.” Poole, 531 F.3d at 267 n.7. The petitioner’s objections fail to address this
clear holding and are without merit.2

The Court concludes that the petitioner’s

remaining arguments are unpersuasive for the reasons stated in the Report.
CONCLUSION
After a thorough review of the Report, the record, and the applicable law, the
Court finds that the petitioner’s objections are without merit. Accordingly, the Court
adopts the Report and incorporates it herein. It is therefore ORDERED that the
petitioner’s § 2241 petition be dismissed without prejudice and without requiring the
respondent to file a return.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
January 23, 2015
Greenville, South Carolina

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Petitioner also fails to raise a specific or meritorious objection to the Magistrate Judge’s
conclusion that the authorities upon which the petitioner relies to attack the validity of his
sentence have not been applied retroactively.

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