Opinion
C/A No. 8:19-cv-2029-TMC-JDA
07-30-2019
Kenneth Dewayne McGaha, Petitioner, v. Warden PFC Edgefield, Respondent.
REPORT AND RECOMMENDATION
Kenneth Dewayne McGaha ("Petitioner") is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Edgefield Federal Correctional Institution. Proceeding pro se, Petitioner brings this habeas action under 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, this habeas action is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
This matter arises from Petitioner's conviction and sentence in the United States District Court for the District of South Carolina for the crime of possession with the intent to distribute methamphetamine and cocaine base. The Court takes judicial notice of the records in Petitioner's criminal case. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts "may properly take judicial notice of matters of public record"); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'"). Petitioner's Conviction, Sentence, and Appeal
On April 18, 2007, Petitioner pled guilty at case number 8:06-cr-01187-TMC to Count 1 of an Indictment, charging him with possession with the intent to distribute methamphetamine and cocaine base in violation of 21 U.S.C. § 841(a)(1). United States v. McGaha, No. 8:06-cr-01187-TMC (D.S.C. Apr. 18, 2007) ("McGaha"), Docs. 27; 31. The Presentence Investigation Report ("PSR") recommended that Petitioner's sentence be enhanced as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"). McGaha, Doc. 35 at 10, 16. The PSR therefore recommended a sentence of 188 months imprisonment with a period of supervised release to follow. McGaha, Doc. 35-2. On August 29, 2007, the Honorable Henry F. Floyd sentenced Petitioner to a term of imprisonment of 188 months, followed by five years' supervised release. McGaha, Doc. 40. Petitioner filed a direct appeal and, on July 30, 2008, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. United States v. McGaha, 288 F. App'x 107 (4th Cir. 2008).
The case was reassigned to the Honorable Timothy M. Cain on June 25, 2014. McGaha, Doc. 89.
Petitioner's § 2255 Motions
On November 2, 2009, Petitioner filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255; the sentencing court denied the motion on July 22, 2011. McGaha, Docs. 65; 85. On June 23, 2014, Petitioner filed a second motion pursuant to 28 U.S.C. § 2255; the sentencing court dismissed the motion as successive on April 3, 2018 . McGaha, Docs. 90; 166. On June 24, 2016, after receiving authorization from the Fourth Circuit Court of Appeals, Petitioner filed a third motion pursuant to 28 U.S.C. § 2255; the sentencing court denied the motion and granted the Government's motion to dismiss or for summary judgment on April 3, 2018. McGaha, Docs. 137; 149; 168.
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241 in this Court, claiming that his sentence is unlawful because the predicate crimes for which he was designated a career offender are no longer crimes of violence under Fourth Circuit precedent. [Doc. 1 at 6.] For his relief, Petitioner requests that the Court re-sentence him and order his immediate release. [Id. at 7.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition is subject to summary dismissal.
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (explaining that a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
DISCUSSION
Savings Clause Test
Unlike a § 2255 motion, which is filed in the sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). Ordinarily, "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)). This is so because a § 2241 petition generally "attacks the execution of a sentence rather than its validity," whereas a § 2255 motion "attacks the legality of detention." Rice v. Lamanna, 451 F. Supp. 2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see also United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the "computation and execution of the sentence rather than the sentence itself"). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's conviction or sentence when § 2255 is "inadequate or ineffective to test the legality of . . . detention." 28 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, Petitioner cannot challenge his federal sentence under § 2241 unless he can satisfy the requirements of the § 2255 savings clause, which states:
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). In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Nevertheless, "the 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." See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
Recently, the Fourth Circuit established a test for evaluating whether a petitioner meets the savings clause under § 2255 when he contests his sentence:
[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 sufficiently grave to be deemed a fundamental defect.United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). This savings clause test is a jurisdictional requirement that must be met before the Court can entertain a petition filed pursuant to § 2241. Id. at 426 (explaining, "the savings clause requirements are jurisdictional"). The Court may sua sponte raise subject matter jurisdiction, and the Fourth Circuit has held that, if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice, 617 F.3d at 807.
Many federal prisoners, such as Petitioner, have erroneously attempted to overturn federal convictions or sentences by filing a § 2241 action. See, e.g., San-Miguel v. Dove, 291 F.3d 257, 259-61 (4th Cir. 2002) (upholding summary dismissal of a § 2241 action filed in the District of South Carolina that challenged convictions and sentences entered in the United States District Court for the District of Puerto Rico). As noted, § 2255 is not an inadequate or ineffective remedy simply because a motion under § 2255 is unsuccessful, untimely, or successive. In Re Vial, 115 F.3d at 1194 n.5. In its seminal decision regarding the savings clause requirements under § 2255, the Fourth Circuit Court of Appeals held that "§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision. A contrary rule would effectively nullify the gatekeeping provisions." Jones, 226 F.3d at 333 (citations omitted). As such, the Fourth Circuit has provided stringent tests, in Jones for challenging a conviction and in Wheeler for challenging a sentence, to meet the savings clause provision of the habeas statute. Notably, however, the savings clause is not satisfied merely because a petitioner's prior § 2255 motion was unsuccessful or because a petitioner is unable to meet the requirements to file a successive § 2255 motion. Chisholm v. Pettiford, No. 6:06-cv-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
Analysis
Petitioner cannot meet the savings clause test announced in Wheeler. Petitioner appears to meet the first requirement of Wheeler, that his sentence was legal at the time of sentencing. However, Petitioner cannot meet the remaining elements of the savings clause test. Accordingly, the undersigned finds that the Court lacks jurisdiction to consider Petitioner's § 2241 Petition, as he cannot show that § 2255 is inadequate to test the legality of his sentence.
As noted, Petitioner pled guilty to possession with the intent to distribute methamphetamine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The sentencing court found Petitioner to be a career offender under the Guidelines and sentenced him to a term of imprisonment of 188 months. Pursuant to the Guidelines, a defendant can be designated a career offender if
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.U.S.S.G. § 4B1.1(a). Petitioner's PSR identified three convictions that purportedly counted as prior felony convictions of a crime of violence: (1) Petitioner's 1998 conviction for the crime of assault and battery of a high and aggravated nature ("ABHAN"), (2) Petitioner's 2000 conviction for the crime of failure to stop for a blue light ("FTSBL"), and (3) Petitioner's 2001 conviction for the crime of criminal domestic violence of a high and aggravated nature ("CDVHAN"). McGaha, Doc. 35 at 8-9. Based on these convictions, the PSR recommended that Petitioner be designated a career offender, and the sentencing court agreed. As a result, Petitioner's offense level was increased from 26 to 34 (with a subsequent three-level reduction for acceptance of responsibility resulting in a total offense level of 31), and his advisory Guideline sentencing range increased to 188 to 235 months. The sentencing court sentenced Petitioner at the bottom end of the Guidelines range.
Petitioner appealed the sentencing court's judgment, challenging the propriety of his career offender status. However, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence, explaining:
The district court determined [Petitioner] was a career offender under [U.S.S.G.] § 4B1.1(a). [Petitioner] had a base offense level of 34, which was reduced three levels pursuant to U.S.S.G. § 3E1.1, and a criminal history category VI. The district court sentenced [Petitioner] to 188 months' imprisonment, in conformity with his advisory guidelines range.United States v. McGaha, 288 F. App'x 107, 107-08 (4th Cir. 2008).
* * *
[Petitioner] was also properly classified as a career offender under U.S.S.G. § 4B1.1(a). According to U.S.S.G. § 4B1.1, a defendant is a career offender if the defendant was 18 at the time of the instant offense of conviction; the instant offense of conviction was a felony crime of violence or a felony controlled substance offense; and the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. At the time of the instant offense [Petitioner] was 37 years old and had three prior felony convictions for crimes of violence. Accordingly, we affirm the judgment of the district court.
Petitioner then filed a motion in the sentencing court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The sentencing court denied his motion and concluded as follows:
[Petitioner] claims that the Court erred in sentencing him as a career offender under the categorical approach. The Fourth Circuit, however, has already affirmed this Court's decision to sentence [Petitioner] as a career offender by, in effect,
employing the categorical approach. United States v. McGaha, No. 07-4930, 2008 WL 2949235, at *1 (4th Cir. July 30, 2008), cert. denied, 555 U.S. 1058 (2008). Construing [Petitioner's] petition liberally, [Petitioner] cites to Begay v. United States, 553 U.S. 137, 146 (2008), for the proposition that the law regarding the application of the categorical rule to ABHAN, CDVHAN, and FTSBL has changed since this Court ruled on the issue. Yet, the Fourth Circuit affirmed this Court over three months after Begay was decided. Compare McGaha, 2008 WL 2949235, at *1 (holding, in effect, that FTSBL, ABHAN, and CDVHAN are categorical crimes of violence on July 30, 2008), with Begay, 553 U.S. at 146 (holding negligent and accidental acts are not categorical crimes of violence on April 16, 2008). Nevertheless, in light of United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), the Court agrees that the crime of FTSBL is not a crime of violence for purposes of enhancing [Petitioner's] sentence. But because just two crimes of violence are necessary to enhance [Petitioner's] sentence pursuant to U.S.S.G. § 4B1.1(a)(3), and the Fourth Circuit precedent affirming ABHAN and CDVHAN as categorical crimes of violence is still binding, the fact that his FTSBL conviction cannot be used is of no moment.McGaha v. United States, No. 8:06-cr-01187-HFF-1, 2011 WL 13302092, at *3 (D.S.C. July 22, 2011).
Petitioner then filed a second motion pursuant to § 2255, asserting that his career offender status was improper in light of the Supreme Courts decision in Descamps v. United States, 570 U.S. 254 (2013), and the Fourth Circuit's decision in United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013). McGaha, Doc. 90. Petitioner then filed a third motion pursuant to § 2255, asserting that his career offender status was improper in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). McGaha, Doc. 149. Petitioner sought authorization from the Fourth Circuit Court of Appeals to file a successive application pursuant § 2255, and the Fourth Circuit granted authorization for Petitioner to pursue his claims in his § 2255 motion under Johnson and Welch. The sentencing court denied both motions. With respect to his motion under Johnson and Welch, the Court concluded as follows:
In his motion, [Petitioner] contends that the holding in Johnson applies equally to the U.S.S.G. However, in Beckles v. United States, the Supreme Court clarified that the reasoning behind the Johnson decision does not apply in the context of the U.S.S.G. Beckles v. United States, — U.S. —, 137 S. Ct. 886, 892 . . . (2017). The Court held that
the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.
United States v. McGaha, No. 8:06-cr-1187-TMC, 2018 WL 4292739, at *2 (D.S.C. Apr. 3, 2018).
Beckles, 137 S. Ct. at 893. Thus, [Petitioner's] issue is without merit.
In the present action, Petitioner again challenges his designation as a career offender under the Guidelines. Specifically, Petitioner contends that his "status as a career offender is improper because [his] prior crimes of ABHAN and [FTSBL] no longer qualify as crimes of violence under Fourth Circuit precedent" in light of Wheeler and Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018). [Doc. 1 at 2.]
As an initial matter, the undersigned notes that Petitioner has raised the same arguments that he raises in this action during the sentencing hearing in the sentencing court, in his direct appeal to the Fourth Circuit, and in each of his three prior habeas motions filed pursuant to § 2255. As explained above, the sentencing court concluded that each of the three predicate offenses qualified as felony crimes of violence to support the career offender designation under the Guidelines; the Fourth Circuit agreed, affirming the conviction and sentence.
Thereafter, the sentencing court, in ruling on Petitioner's first § 2255 motion, found that FTSBL is no longer a crime of violence under the Guidelines, but that Petitioner had two other qualifying predicate offenses to support his career offender status. Thus, the only two predicate offenses supporting Petitioner's career offender designation are his prior convictions for ABHAN and CDVHAN. Accordingly, Petitioner's argument that his prior conviction for FTSBL cannot support his career offender designation is moot and the Court will not address this argument.
Further, Petitioner has not alleged that his third predicate offense, that of CDVHAN, is not a crime of violence under the Guidelines. Indeed, the Fourth Circuit has held that CDVHAN is categorically a crime of violence under the Guidelines. United States v. Chisolm, 579 F. App'x 187, 195-96 (4th Cir. 2014); see also United States v. Lewis, 719 F. App'x 210, 220 (4th Cir. 2018) (also finding that CDVHAN is categorically a crime of violence under the Armed Career Criminal Act ("ACCA")). The Court further notes that, even if Petitioner challenged his career offender designation based on his conviction for CDVHAN, his claim would fail for the same reasons his claim with regard to his ABHAN conviction fails, as explained below.
At first blush, a review of the case law in the Fourth Circuit regarding whether South Carolina ABHAN is a crime of violence under the Guidelines seems muddled at best. In United States v. Velez, 167 F. App'x 349, 350 (4th Cir. 2006), the Fourth Circuit held that a conviction for common law ABHAN meets U.S.S.G. § 4B1.2's definition of a crime of violence and therefore could serve as a predicate offense for a Guideline's career offender designation. Then, in United States v. Ward, 439 F. App'x 258, 260 (4th Cir. 2011), the Fourth Circuit concluded, "[a]ssuming without deciding that ABHAN is not a crime of violence per se," that a South Carolina ABHAN conviction could constitute a crime of violence under U.S.S.G. § 4B1.2 applying the modified categorical approach. See also United States v. Kinney, 468 F. App'x 260, 261 (4th Cir. 2012). Later, however, the Fourth Circuit concluded that "the modified categorical approach is inapplicable to ABHAN" for purposes of a Guidelines enhancement and that "a conviction for ABHAN is not categorically for a crime of violence." United States v. Montes-Flores, 736 F.3d 357, 369 (4th Cir. 2013); see also Hemingway, 734 F.3d at 338 ("ABHAN is not categorically an ACCA violent felony.").
In a footnote in Hemingway, the Fourth Circuit noted,
As the parties emphasize in their various submissions, the question of whether ABHAN is categorically an ACCA violent felony has received some inconsistent answers in our Court. In several of our unpublished postBegay decisions, our Court considered ABHAN to be a categorically "violent felony" for purposes of the ACCA, as well as a "crime of violence" for purposes of the Guidelines. These decisions , of course , are not binding and were rendered prior to both Sykes and Descamps.Hemingway, 734 F.3d at 338, n.15 (internal citations omitted) (emphasis added). The undersigned further notes that Hemingway and Montes-Flores were superceded by statute, as recognized in United States v. Butler, 760 F. App'x 194 (4th Cir. 2019), after common law ABHAN was codified in a state statute by the South Carolina state legislature; however, while South Carolina has codified ABHAN, Petitioner was convicted and sentenced under the common law ABHAN and the subsequent codification of ABHAN has no impact on the issues before the Court.
Although Petitioner does not address the Fourth Circuit's decisions in Montes-Flores and Hemingway in this Petition, the undersigned finds that an evaluation of their application to Petitioner's claims is proper because they involve the issue of whether ABHAN is a crime of violence for purposes of a sentencing enhancement. Nevertheless, despite the Fourth Circuit's holding in Montes-Flores and Hemingway that common law ABHAN is not a crime of violence for purposes of a sentencing enhancement under the Guidelines and the ACCA, Petitioner's argument that ABHAN is no longer a crime of violence is without merit for a number of reasons.
First, Hemingway is inapplicable to the present action because it involved an ACCA enhancement. Petitioner challenges his career offender designation under the Guidelines and not under an ACCA enhancement; thus Hemingway is inapplicable. Montes-Flores, on the other hand, involved a Guidelines enhancement, though under a different Guidelines provision than the one challenged by Petitioner in this case. However, Wheeler requires that, before Petitioner may pass through the savings clause gatekeeping portal, he must show that subsequent to his direct appeal and first § 2255 motion, the settled substantive law change has been deemed to apply retroactively on collateral review. Petitioner's direct appeal was denied by the Fourth Circuit in 2008 and his first § 2255 motion was denied in 2011, both before the Fourth Circuit's decisions in Montes-Flores and Hemingway. However, even if Montes-Flores and Hemingway changed the settled substantive law applicable to Petitioner's sentencing subsequent to his direct appeal and first § 2255 motion, "it has been broadly recognized that these decisions are not retroactively applicable on collateral review." Syndab v. United States, No. 4:07-cr-00486-TLW-1, 2016 WL 562099, at *2, n.3 (D.S.C. Feb. 11, 2016); see also , e.g., Ladson v. United States, No. 4:09-cr-00226-TLW, 2015 WL 3604220, at *2 (D.S.C. June 5, 2015) (holding that Hemingway is not retroactive); Johnson v. United States, No. 4:08-cr-876-RBH-2, 2014 WL 7403972, at *3 (D.S.C. Dec. 30, 2014) (finding "Hemingway and Montes-Flores do not represent a right that 'has been newly recognized by the Supreme Court made retroactively applicable to cases on collateral review'" under 28 U.S.C. § 2255(f)(3)). Thus, Petitioner is unable to satisfy the second prong of Wheeler to show that Hemingway and Montes-Flores apply retroactively on collateral review.
Next, and importantly, following the Fourth Circuit's decisions in Hemingway and Montes-Flores, the Supreme Court also held in Johnson, 135 S.Ct. at 2556, that the residual clause in the ACCA,18 U.S.C. § 924(e)(1)(ii), was unconstitutional, and subsequently held in Welch, 136 S.Ct. at 1268, that the newly established right recognized in Johnson is retroactive to cases on collateral review. However, the sentencing court has already evaluated Petitioner's argument for relief under Johnson and Welch in Petitioner's prior § 2255 motion and concluded that Johnson and Welch do not apply. The same reasoning applies here to bar Petitioner's claim for relief under Wheeler. As noted by Judge Cain, the Supreme Court in Beckles found that the advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause as they are in ACCA cases, such as Johnson and Hemingway. Petitioner was sentenced under the Guidelines as a career offender and not under the ACCA. Accordingly, "[b]ecause the residual clause of the career offender sentencing guideline is not void for vagueness, [Petitioner] is unable to challenge his career offender status on those grounds." United States v. Hopkins, No. 3:07-cr-153-JFA, 2018 WL 1466674, at *2 (D.S.C. Jan. 12, 2018).
Finally, the Court addresses Petitioner's reliance on Lester to support his contention that his career offender designation is improper. Lester is inapplicable because it involved a Guidelines enhancement in the pre-Booker era. The issue in Lester turned on the fourth prong of Wheeler to evaluate whether the defendant's sentence was fundamentally defective because it was the product of an erroneous increase to his mandatory sentencing range. Lester, 909 F.3d at 714. The Fourth Circuit vacated the defendant's sentence, finding that he was sentenced under the pre-Booker mandatory Guidelines and that his erroneous career offender designation resulted in a fundamentally defective sentence because the sentencing court lacked the discretion to depart from the mandatory Guidelines. Id. at 715-16. However, Lester provides no help for Petitioner as his claims are readily distinguishable and his reliance on Lester is misplaced. Petitioner was sentenced under the advisory Guidelines after Booker. Accordingly, the same concerns addressed in Lester are not present here. Instead, as the Fourth Circuit explained in United States v. Foote, 784 F.3d 931, 940-41 (4th Cir. 2015), a defendant's sentence, when based on a career offender designation that is subsequently nullified, is not a fundamental defect that inherently results in a complete miscarriage of justice, as required for the defendant to challenge his sentence, where the Guidelines are advisory and the sentencing court is free to vary from the career offender sentencing range and the sentence did not exceed the statutory maximum. See Johnson v. United States, No. 4:08-cr-00876-RBH-2, 2017 WL 9478408, at *3 (D.S.C. Aug. 23, 2017) (explaining that, under Foote, a petitioner's claim that he was improperly designated a career offender based on prior offenses that are no longer crimes of violence is not cognizable on collateral review). Thus, even if Petitioner could meet the second prong of Wheeler, "he cannot meet the fourth prong, which requires a showing that due to a retroactive change in the law, his sentence now presents an error sufficiently grave to be deemed a fundamental defect." Leach v. Entzel, No. 5:18-cv-107, 2019 WL 2870098, at *1 (N.D.W. Va. July 3, 2019) (citing Lester, 909 F.3d at 715); see also Kornegay v. Warden, 748 F. App'x 513, 514 (4th Cir. 2019) (denying a § 2241 petition challenging advisory Guideline sentence based upon Foote and citing Lester); Payton v. Entzel, No. 2:18-cv-48, 2019 WL 2578770, at *4 (N.D.W. Va. June 24, 2019) (explaining that the petitioner was sentenced under the post-Booker advisory Guidelines and thus, regardless of whether his sentence was a misapplication of the Guidelines, Lester and Foote make clear that the petitioner cannot satisfy the fourth Wheeler prong); Peacock v. Bragg, No. 2:18-cv-1987-HMH-MGB, 2019 WL 1499270, at *4 (D.S.C. Apr. 5, 2019) (explaining that "central to the Fourth Circuit's reasoning in Wheeler and Lester was the fact that in both cases, the pre-Booker sentencing courts did not have discretion to impose sentences lower than the mandatory USSG range" and concluding that because the petitioner was sentenced after Booker, the Guidelines were advisory only and the petitioner's sentence therefore did not present a fundamental defect under Wheeler). Accordingly, Petitioner's reliance on Lester is misplaced, and he has failed to satisfy the savings clause test under Wheeler.
CONCLUSION AND RECOMMENDATION
For the reasons explained above, this Court lacks jurisdiction to consider the Petition. Accordingly, it is recommended that the § 2241 Petition be dismissed without prejudice and without requiring the Respondent to file an answer or return.
See Platts v. O'Brien, 691 F. App'x 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("A dismissal for . . . [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.").
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 30, 2019
Greenville, South Carolina
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead 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 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).