Opinion
C/A No. 8:19-cv-00629-RMG-JDA
03-14-2019
Terry Lamont Mumford, Petitioner, v. United States of America, Warden Edgefield Federal Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Terry Lamont Mumford ("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. [Doc. 1 at 1.] Petitioner brings this habeas action under 28 U.S.C. § 2241 and is proceeding pro se. 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, the Petition is subject to summary dismissal.
BACKGROUND
Petitioner's Conviction, Sentence, and Appeal
On June 6, 2005, Petitioner pled guilty in the United States District Court for the Middle District of North Carolina to Count 1 of an Indictment at case number 1:05-cr-00125-CCE, charging him with bank robbery in violation of 18 U.S.C. §§ 2113(a), and to Count 1 of an Indictment at case number 1:05-cr-00126-CCE, also charging him with bank robbery in violation of 18 U.S.C. §§ 2113(a). [Doc. 1 at 1-2]; United States v. Mumford, No. 1:05-cr-00125-CCE (M.D.N.C. Jun. 6, 2005), Docs. 11; 14 ("Mumford I"); United States v. Mumford, No. 1:05-cr-00126-CCE (M.D.N.C. Jun. 6, 2005), Docs. 11; 14 ("Mumford II"). On September 12, 2005, the Honorable Frank W. Bullock, Jr., sentenced Petitioner to, among other things, a term of 180 months' imprisonment as to Count 1 at case number 1:05-cr-00125-CCE and a term of 180 months' imprisonment as to Count 1 at case number 1:05-cr-00126-CCE, with both sentences to run concurrently with each other and consecutive to the state sentence he was serving at the time. [Doc. 1 at 1]; Mumford I, Doc. 21; Mumford II, Doc. 20. As noted by the Fourth Circuit Court of Appeals in ruling on Petitioner's direct appeal,
The Court takes judicial notice of the records in Petitioner's criminal cases in the Middle District of North Carolina at case numbers 1:05-cr-00125-CCE and 1:05-cr-00126-CCE, as well as his related actions seeking habeas relief in the sentencing court at case number 1:15-cv-01108-CCE and his appeal filed in the Fourth Circuit Court of Appeals. 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.'").
The district court concluded that [Petitioner] qualified for sentencing as a career offender pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (2004), and sentenced him under an advisory sentencing regime, after considering the applicable sentencing range and the factors under [18 U.S.C. § 3553(a)], to a sentence within the applicable guideline range.United States v. Mumford, 174 F. App'x 767, 767 (4th Cir. 2006). On April 6, 2006, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. [Doc. 1 at 2]; Mumford, 174 F. App'x at 767. The United States Supreme Court denied Petitioner's petition for writ of certiorari on October 2, 2006. Mumford v. United States, 549 U.S. 890, (2006).
Petitioner's § 2255 Motion
On December 31, 2015, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. [Doc. 1 at 4]; Mumford I, Doc. 30; Mumford II, Doc. 29. Petitioner argued, among other things, that his sentence should be vacated under the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Mumford I, Doc. 30; Mumford II, Doc. 29. However, the sentencing court denied his motion on November 2, 2017. Mumford I, Doc. 43; Mumford II, Doc. 32.
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241 in this Court, claiming that his sentence is unconstitutional because he is no longer a career offender under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") due to a substantive change in the law. [Doc. 1-1 at 1.] Petitioner contends that he meets the savings clause test announced in United States v. Wheeler, 886 F.3d 415 (2018). [Id.] For his relief, Petitioner requests that the Court vacate his sentence. [Id.]
Petitioner filed a supporting brief with his Petition. [Doc. 1-1.] The Court has carefully reviewed both the Petition and the supporting brief, as well as the documents from Petitioner's underlying criminal actions, in its consideration of Petitioner's claims.
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). The 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) (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. Here, Petitioner has already filed a motion under § 2255 in the sentencing court seeking relief from his conviction and sentence but was unsuccessful. 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. While at first blush, this issue may seem complex for initial review under § 1915, consideration of it is required because the § 2255 savings clause is a jurisdictional requirement, and an analysis of whether Petitioner meets the new four factor savings clause test created in Wheeler is therefore required at this stage.
Petitioner appears to meet the first requirement of Wheeler that his sentence was legal at the time of sentencing. However, Petitioner cannot meet the second element because he cannot show that, subsequent to his first § 2255 motion, the settled substantive law under which he was sentenced changed and was deemed to apply retroactively on collateral review.
Petitioner's Argument
Petitioner argues that his sentence should be vacated and that he meets the four-part savings clause test announced in Wheeler. [Doc. 1-1 at 1.] Specifically, Petitioner contends that his prior conviction for escape from prison cannot count as a predicate offense for the career offender enhancement under the Guidelines. [Id.] Petitioner relies on Chambers v. United States, 555 U.S. 122 (2009), and United States v. Clay, 627 F.3d 959 (4th Cir. 2010), which, according to Petitioner, provided a substantive change in the law such that "the conduct involved in [Petitioner's] conviction for escape is no longer criminal under the career offender provisions of [U.S.S.G.] § 4B1.2." [Id.]
As to the first prong of the Wheeler test, Petitioner concedes that his sentence was legal when imposed, citing United States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995). [Id.] According to Petitioner, Hairston qualified him to be sentenced under the Guidelines as a career offender based on his prior conviction for escape from prison because Hairston held that "'[a]ny escape inherently presents the serious risk of physical harm to another.'" [Id. (citing Hairston, 71 F.3d at 118).] Regarding Wheeler's second prong, Petitioner contends that Chambers and Clay announced a substantive change in the law deemed to apply retroactively on collateral review. [Id.] According to Petitioner, Chambers and Clay overruled Hairston and held that "'a walkaway escape from an unsecured facility is a far cry from the type of conduct that is associated with the enumerated crimes in § 4B1.2(a)'s otherwise clause.'" [Id. at 1-2 (quoting Clay, 627 F.3d at 969).] Petitioner contends that these decisions were reached after his direct appeal and after the time for filing his first § 2255 motion had expired. [Id. at 2.] Petitioner explains that he did not file a motion under § 2255 initially "because there were no laws in support of his claims and he did not feel there were any issues with respect[ ] to the performance of his trial counsel" and that he is now unable to meet the gatekeeping provisions of § 2255(h)(2), thus meeting the third prong of Wheeler. [Id.] Finally, with respect to Wheeler's fourth prong, Petitioner cites cases holding that the "'erroneous application of a mandatory career offender guideline is a fundamental sentencing defect that can be remedied under § 2241.'" [Id. (quoting Brown v. Carraway, 719 F.3d 583 (7th Cir. 2013)).]
The Supreme Court denied Petitioner's petition for writ of certiorari on October 2, 2006, making his judgment final on that date. Thus, Petitioner had one year from October 2, 2006, to file his § 2255 motion in the sentencing court. 28 U.S.C. § 2255(f)(1). Petitioner did not file his first § 2255 motion in the sentencing court until December 31, 2015, after the Supreme Court decided Johnson. However, this was permitted by the habeas statute, which provides that the one-year limitation period begins on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Johnson involved a newly recognized right by the Supreme Court that was made retroactively applicable to cases on collateral review.
Analysis
Petitioner's arguments are without merit, and he cannot meet the savings clause test announced in Wheeler. 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, however, § 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." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (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. 6:06-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
As noted, Wheeler requires that "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." Wheeler, 886 F.3d at 429. Petitioner's reliance on Chambers and Clay fails to satisfy Wheeler for two reasons.
First, both Chambers and Clay were decided before Petitioner filed his first § 2255 motion. While Petitioner is correct that Chambers and Clay were decided after his direct appeal and after the one-year limitations period for a § 2255 motion, he is incorrect in his reading of Wheeler, which requires a change in the law after the first § 2255 motion is filed. The operative sequence of dates in Wheeler is not based on the habeas statute's one-year limitations period from the date of final judgment, but on the actual filing of a § 2255 motion. Here, Chambers and Clay were decided before Petitioner filed his first § 2255 motion.
Further, even if Chambers and Clay had been decided after Petitioner's first § 2255 motion, satisfying the second Wheeler element, Petitioner would still fail to meet the fourth element, which requires a showing that, due to the retroactive change in the law, the sentence now presents an error sufficiently grave to be deemed a fundamental defect. This is so because, even if Chambers and Clay dictate that Petitioner's conviction for escape cannot qualify as a crime of violence under the Guidelines, Petitioner nevertheless has two other qualifying predicate offenses under the Guidelines' career offender provision. As noted, Petitioner pled guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a) and was subsequently sentenced to 180 months of imprisonment as a career offender under United States Sentencing Guidelines § 4B1.1. Mumford 1, Doc. 41 at 1; Doc. 35 at 1 (citing PSR ¶ 32). As a result, Petitioner was assigned a total offense level of 29, a criminal history category VI, and a Guidelines sentencing range of 151 to 188 months. Mumford 1, Doc. 35 at 1 (citing PSR ¶ 84).
Petitioner had one qualifying conviction for a controlled substance offense under U.S.S.G. § 4B1.2(b) and one qualifying conviction for the offense of burglary of a dwelling, which is classified as a crime of violence under U.S.S.G. § 4B1.2(a)(2). Id. at 5. Thus, Petitioner had two prior felony convictions of either a crime of violence or a controlled substance offense to qualify as a career offender under U.S.S.G. § 4B1.1. Petitioner does not challenge either of these two predicate offenses in his instant Petition. Instead, he challenges his career offender status under U.S.S.G. § 4b1.1 on the sole basis that his prior conviction for escape no longer qualifies as a crime of violence in light of Chambers and Clay. Accordingly, even if Petitioner's conviction for escape would no longer qualify as a crime of violence under the Guidelines, he had two other qualifying predicate offenses to satisfy the career offender designation of U.S.S.G. § 4B1.1, and his claims are therefore without merit.
Petitioner filed his first motion pursuant to § 2255 in the sentencing court on December 31, 2015. See Mumford I, Doc. 30; Mumford II, Doc. 29. The Supreme Court issued its decision in Johnson on June 26, 2015, prior to Petitioner's first § 2255 motion filed in the sentencing court. The sentencing court stayed Petitioner's § 2255 motion in accordance with the Order of the Chief Judge of the Middle District of North Carolina entered in In re: Motions Related to Claims under Johnson (M.D.N.C. July 27, 2016), pending the decision of the Supreme Court in Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016). See Mumford I, Text Order dated Sept. 14, 2016. As noted in the Text Order staying Petitioner's case, "[u]pon issuance of the decision in Beckles, this stay will be lifted and the case resolved unless it appears to the Court that another decision of the Supreme Court of the United States, such as one specifically addressing the application of U.S.S.G. § 2K2.1 or a similar guideline provision in light of Johnson, requires a further stay." Id.
After the Supreme Court issued its decision in Beckles, the sentencing court lifted the stay in Petitioner's case and denied Petitioner's § 2255 motion on November 2, 2017. Mumford I, Docs. 41; 43; Mumford II, Docs. 30; 32. In ruling on Petitioner's first § 2255 motion, the sentencing court evaluated Petitioner's claims in light of both Johnson and Beckles. Id. In addition to Johnson and Beckles being decided prior to the sentencing court's decision on Petitioner's first § 2255 motion, both Chambers and Clay were decided before Petitioner filed his first § 2255 motion. Indeed, Petitioner relied on Chambers in his first § 2255 motion to support his career offender challenge under the Guidelines. See Mumford I, Doc. 30-1 at 9-10; Mumford II, Doc. 29-1 at 9-10. Thus, Petitioner cannot meet the Wheeler test's requirement that the settled substantive law was changed subsequent to Petitioner's first § 2255 motion.
In Johnson, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 135 S. Ct. at 2557-58, 2563. The Supreme Court subsequently held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). As such, Johnson qualifies as a settled substantive law change deemed to apply retroactively on collateral review for purposes of Wheeler. However, as the sentencing court concluded in evaluating Petitioner's claims under § 2255, Petitioner failed to demonstrate that the change in substantive law announced in Johnson affords him any relief. This is so because, while Petitioner argued that Johnson "limits the career offender Guideline in the same way" as it did when it deemed the residual clause of the ACCA unconstitutionally vague, Beckles held that the career offender provisions of the Guidelines "are not subject to the type of vagueness challenge under the Due Process Clause that prevailed in Johnson with respect to the [ACCA]." Mumford 1, Doc. 41 at 1-2 (citing Beckles, 137 S. Ct. at 895). The sentencing court therefore concluded that, "like the petitioner in Beckles, Petitioner cannot obtain relief from his career offender sentence based on Johnson." Id. As noted above, Beckles similarly applies to the instant Petition filed under § 2241, and Petitioner is not entitled to relief.
Petitioner had the full benefit of the sentencing court's evaluation of his career offender challenge under the Guidelines in his first § 2255 motion in light of Johnson and Beckles, and the sentencing court declined to consider his arguments under Chambers. Petitioner, therefore, is not entitled to relief in this § 2241 action in light of Wheeler. Because the claims in this action are nearly identical to those in Petitioner's prior § 2255 action, in which he argued that he was not a career offender under the Guidelines in light of Johnson and Chambers, Petitioner cannot now bring about a different result in this § 2241 action. "[P]etitioner is trying to take yet another 'bite at the apple.' However, by litigating his first § 2255 petition on the merits, . . . [P]etitioner had his one 'bite at the apple.'" White v. Rivera, No. 3:08-cv-3681-PMD-JRM, 2009 WL 1456712, at *8 (D.S.C. May 21, 2009) (citing In re Goddard, 170 F.3d 435 (4th Cir.1999)).
Second, Chambers did not announce a change in the settled substantive law applicable to Petitioner's case. Petitioner asserts that Chambers announced a new rule of substantive law and was made to apply retroactively on collateral review. [Doc. 1-1 at 4.] Petitioner relies on two cases to support his claim: Welch v. United States, 604 F.3d 408, 411 (7th Cir. 2010), and United States v. Shipp, 589 F.3d 1084, 1086 (10th Cir. 2009), which both concluded that Chambers applies retroactively on collateral review to convictions that were final at the time the case was decided by the Supreme Court. However, neither Chambers, Welch, nor Shipp, apply to Petitioner's case. All three cases addressed whether a conviction for escape could be considered a violent felony under the Armed Career Criminal Act ("ACCA"). These cases are inapplicable here because Petitioner is not challenging an enhancement under the ACCA, but under the Guidelines, an issue not decided in any of the three cases cited by Petitioner. Thus, Chambers does not present a substantive change in the law applicable to Petitioner's sentence. Instead, Beckles applies and forecloses Petitioner's arguments. As noted, Petitioner previously raised a Johnson challenge to his sentence as a career offender under the Guidelines in his first § 2255 motion, but the sentencing court rejected Petitioner's argument, finding that, in light of Beckles, 137 S. Ct. at 895, "the career offender Guidelines [ ] are not subject to the type of vagueness challenge under the Due Process Clause that prevailed in Johnson with respect to the [ACCA]." See Mumford I, Docs. 41 at 2; 43; Mumford II, Docs. 30 at 2; 32. For the same reasons, this Court concludes that Petitioner is not entitled to relief in the instant § 2241 action pursuant to Chambers and Clay.
Petitioner has already attempted to challenge his sentence in his direct appeal and his first § 2255 action, in part on the grounds he now asserts in this Petition, but his attempts were unsuccessful. And, the instant Petition fails to assert any new substantive law change subsequent to his first § 2255 motion applicable to his sentence. Petitioner has failed to satisfy the elements of the Fourth Circuit's Wheeler test to invoke the savings clause to challenge his sentence in this § 2241, and his Petition is therefore subject to summary dismissal. See United States v. Miller, No. 6:06-cv-548-HFF, 2007 WL 2684844, at *3 (D.S.C. Sept. 7, 2007) (explaining § 2255 affords petitioner the relief which he seeks and § 2241 cannot be used in lieu of a proceeding under § 2255) (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)).
CONCLUSION AND RECOMMENDATION
Petitioner cannot meet the savings clause test announced in Wheeler. Therefore, 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. Petitioner's attention is directed to the important notice on the next page.
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 March 14, 2019
Greenville, South Carolina
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).