Opinion
2:20-cv-03491-JMC-MGB
03-26-2021
Byron K. Perkins, # 14373-058, Petitioner, v. Bryan K. Dobbs, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Byron K. Perkins (“Petitioner”), a pro se federal prisoner, brings this action seeking a writ of habeas corpus under 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge has reviewed the petition and submits this Report and Recommendation to the United States District Judge. For the reasons discussed below, the undersigned recommends that the petition be summarily dismissed, without prejudice and without issuance and service of process.
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). The undersigned therefore takes judicial notice of the records filed in Petitioner's underlying criminal case and subsequent habeas actions in reaching the recommendation herein.
Petitioner is an inmate at the Federal Correctional Institution, Williamsburg (“FCI Williamsburg”) in Salters, South Carolina. On or around July 6, 2005, Petitioner was indicted by a grand jury in the U.S. District Court for the Western District of Kentucky for possession with the intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) (Count 1); possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 2); carrying a firearm during and in relation to a drug trafficking crime as described in Count 1 in violation of 18 U.S.C. §§ 924(c)(1)(A), (C) (Count 3); robbery affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a), (2) (Count 4); and carrying a firearm during and in relation to a drug trafficking crime as described in Count 4 in violation of 18 U.S.C. §§ 924(c)(1)(A), (C) (Count 5). (See United States v. Perkins, No. 3:05-cr-00059-CHB-1, hereinafter referred to as “Crim. No. 59.”) On November 18, 2005, Petitioner pled guilty to Counts 1, 2, 4 and 5 pursuant to a written plea agreement. Count 2 was later dismissed by motion of the United States. (See Crim. No. 59, Dkt. Nos. 109, 116.)
Following his guilty plea, but before sentencing, Petitioner was granted a temporary order of release so that he could complete the necessary medical testing to donate a kidney to his son. (Crim. No. 59, Dkt. No. 39.) Petitioner instead fled to Mexico and remained a fugitive for fifteen months until the U.S. Marshal Service arrested him in Puerto Vallarta. (Crim. No. 59, Dkt. No. 45.) Upon his return to custody, Petitioner sought and was appointed new counsel (Crim. No. 59, Dkt. No. 48) and filed a motion to set aside his original guilty plea (Crim. No. 59, Dkt. No. 54). The district court denied Petitioner's motion to set aside his guilty plea on July 29, 2009 (Crim. No. 59, Dkt. No. 111), and sentenced him to 510 months' imprisonment on September 2, 2009 (Crim. No. 59, Dkt. No. 116). The sentence was based, in part, on the finding that Petitioner qualified as a “career offender” under § 4B1.1 of the U.S. Sentencing Guidelines for prior violent criminal convictions. (Crim. No. 59, Dkt. Nos. 122, 160.) The Sixth Circuit Court of Appeals adopted the district court's final judgment and denied Petitioner's appeal on or around September 22, 2010. (Crim. No. 59, Dkt. No. 127.)
On September 8, 2011, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging, among other things, that his replacement counsel failed to adequately investigate the case, produce witnesses, and present evidence of Petitioner's credibility. (Crim. No. 59, Dkt. No. 129.) The district court ultimately denied Petitioner's request for habeas relief on October 23, 2012 (Crim. No. 59, Dkt. No. 138) and the Sixth Circuit denied the subsequent appeal on July 3, 2013 (Crim. No. 59, Dkt. No. 144).
On May 9, 2016, Petitioner filed a second motion to vacate his sentence under 28 U.S.C. § 2255, this time seeking habeas relief pursuant to the U.S. Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015), which held that imposing an increased sentence based on prior “violent felonies” as defined under the residual clause of the Armed Career Criminal Act (ACCA) violated an offender's due process rights because the residual clause was unconstitutionally vague. (Crim. No. 59, Dkt. No. 145.) Based on this holding, Petitioner argued that the nearly identical residual clause in the U.S. Sentencing Guidelines was likewise void for vagueness, such that his designation as a career offender was unconstitutional. The district court transferred Petitioner's motion to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A), explaining that “[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” (Crim. No. 59, Dkt. No. 146.)
On or around January 4, 2017, the Sixth Circuit granted Petitioner permission to file a successive § 2255 motion based on the holding in Johnson. (Crim. No. 59, Dkt. No. 152.) Before the district court could rule on Petitioner's motion, however, the U.S. Supreme Court decided Beckles v. United States, 137 S.Ct. 886 (2017), which held that the U.S. Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause. 137 S.Ct. at 897. Thus, in light of Beckles, the district court ultimately denied Petitioner's second motion to vacate on May 1, 2017 (Crim. No. 59, Dkt. No. 162), and the Sixth Circuit denied Petitioner's appeal on November 28, 2017 (Crim. No. 59, Dkt. No. 175).
On March 6, 2019, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the Southern District of West Virginia. (See Perkins v. Warden Young, No. 5:19-cv-00152, hereinafter referred to as “No. 152.”) Petitioner argued that his prior Kentucky state conviction for burglary in the first degree no longer qualified as a predicate offense for purposes of calculating a career offender status under the U.S. Sentencing Guidelines, and that his sentence was improperly enhanced as a result. Petitioner relied on the U.S. Supreme Court's decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) and Descamps v. United States, 570 S.Ct. 254 (2013), which addressed the categorical approach for determining whether a conviction qualifies as a predicate offense for an enhanced sentence under the ACCA. On January 13, 2020, Petitioner filed a motion to voluntarily dismiss his petition (No. 152, Dkt. No. 18), which the district court granted on February 12, 2020 (No. 152, Dkt. No. 20).
Petitioner was apparently housed at the Federal Correctional Institution, Beckley (“FCI Beckley”) in Beaver, West Virginia at the time he filed this petition. (No. 152, Dkt. No. 1.)
On January 9, 2020, Petitioner filed yet another § 2255 motion in his underlying criminal case in the Western District of Kentucky, seeking relief pursuant to the U.S. Supreme Court's decision in Davis v. United States, 139 S.Ct. 2319 (2019), which held that conspiracy to commit Hobbs Act robbery is no longer a “crime of violence” for purposes of 18 U.S.C. § 924(c). (Crim. No. 59, Dkt. No. 177.) Shortly thereafter, Petitioner filed a motion to withdraw his § 2255 filing, acknowledging that he “did not first seek permission from the court of Appeals to file said motion” and “was not aware of certain cases that are now pending in the Supreme Court that would have a significant bearing on the merits of [his] motion.” (Crim. No. 59, Dkt. No. 179.) On May 21, 2020, the district court issued an order transferring Petitioner's § 2255 motion to the Sixth Circuit as “a second or successive motion, ” explaining that, “[b]ecause the Sixth Circuit is the court with jurisdiction over this matter, the district court cannot entertain the motion to withdraw.” (Crim. No. 59, Dkt. No. 180.) The Sixth Circuit granted Petitioner's motion to voluntarily dismiss his petition for habeas relief on or around July 2, 2020. (Crim. No. 59, Dkt. No. 182.)
Petitioner subsequently filed a motion for a sentence reduction and/or compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) in light of the COVID-19 pandemic. (Crim. No. 59, Dkt. No. 183.) The district court denied Petitioner's request on January 14, 2021 (Crim. No. 59, Dkt. No. 193), and Petitioner's appeal is currently pending before the Sixth Circuit.
It is against this procedural background that Petitioner now attempts to challenge his conviction and sentence under 28 U.S.C. § 2241 in the U.S. District Court for the District of South Carolina. (Dkt. No. 1.) Although Petitioner's memorandum in support (Dkt. No. 1-1) is somewhat convoluted and difficult to follow, he appears to allege two primary grounds for relief. First, Petitioner challenges his conviction pursuant to the U.S. Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019), which held that, in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove that the defendant knew he possessed a firearm and that he belonged to the relevant category of persons barred from possessing a firearm. 139 S.Ct. at 2200. Petitioner claims that the “Government failed to prove that all the elements were established at the time of his sentencing” and his “conviction under 18 U.S.C. § 924(a)(2) should therefore be considered invalid.” (Dkt. No. 1-1 at 5; Dkt. No. 1 at 4.) Second, Petitioner claims that his counsel was ineffective in failing to investigate his prior convictions “for any constitutional defects or irregularities, ” and in failing to object to the use of those predicate offenses as the basis for Petitioner's sentence enhancement as a career offender. (Dkt. No. 1-1 at 7; Dkt. No. 1 at 4.)
For context, 18 U.S.C. § 924(a)(2) provides, “[w]hoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2) (emphasis added). The Rehaif Court concluded that the term “knowingly” as used in § 924(a)(2) applied both to the defendant's conduct (that he possessed a firearm) and to his status (as a felon, unlawful alien, or the like) for purposes of § 922(g)(1). See Rehaif v. United States, 139 S.Ct. 2191, 2194 (2019).
Although not explicitly enumerated in his petition, the undersigned also notes a possible third ground for relief, as Petitioner suggests throughout his memorandum that certain recent case law may render his predicate offenses “non-violent” for purposes of the career offender enhancement applied to his initial sentence. (See, e.g., Dkt. No. 1-1 at 3, 5-8, referencing Davis v. United States, 139 S.Ct. 2319 (2019); United States v. Barrett, 937 F.3d 126 (2d Cir. 2019); and Mathis v. United States, 136 S.Ct. 2443 (2019).)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Petitioner's pro se petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996; and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
See Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply the rules to § 2241 petitions).
The narrow question before the Court is whether it “plainly appears” that Petitioner is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because Petitioner is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). Such is the case here.
DISCUSSION
It is well-established that a federal prisoner may only seek collateral review of his conviction and sentence through 28 U.S.C. § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Once the prisoner has filed an unsuccessful § 2255 motion, as Petitioner has here, he may not pursue additional collateral review except under narrow circumstances. One such avenue is through the § 2255 savings clause, which allows the prisoner to file a § 2241 petition for a writ of habeas corpus if it “appears that the remedy by [a § 2255] motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). However, “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.” In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
The Fourth Circuit Court of Appeals held in In re Jones, 226 F.3d 328 (4th Cir. 2000), that a petitioner must satisfy the following criteria in order to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of his conviction:
(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.226 F.3d at 333-34; see also Id. at 333 n.3 (explaining that this test was formulated expressly to provide a remedy for the “fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, has no source of redress”). The Fourth Circuit later established a similar set of criteria in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), to determine whether a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence:
(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.886 F.3d at 429. Because the savings clause requirements are jurisdictional, the court cannot entertain a petition that does not satisfy each of the aforementioned elements. See, e.g., Wheeler, 886 F.3d at 426 (explaining that the savings clause requirements are jurisdictional and may not be waived); Rice, 617 F.3d at 807 (finding that the district court lacked jurisdiction over the habeas petition where petitioner was unable to satisfy the second prong of the Jones rule).
In evaluating the savings clause, the court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Mosley, 931 F.3d 295, 301 (4th Cir. 2019). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Petitioner was convicted in the U.S. District Court for the Western District of Kentucky, so the undersigned considers the substantive law of the Sixth Circuit Court of Appeals in assessing Petitioner's claims.
For the reasons discussed below, the undersigned finds that Petitioner cannot invoke the savings clause through either Jones or Wheeler.
I. Rehaif v. United States Does Not Apply to the Instant Case
As stated above, Petitioner claims that his “conviction under 18 U.S.C. § 924(a)(2)” is unconstitutional due to the Government's alleged failure to prove all of the elements under 18 U.S.C. § 922(g)(1) as required by Rehaif v. United States, 139 S.Ct. 2191 (2019). (Dkt. No. 1-1 at 5.) More specifically, the Government purportedly failed to demonstrate that Petitioner knew he fell into a category of persons barred from possessing a firearm. Notably, Petitioner seems to suggest that his conviction under 18 U.S.C. § 924(c)(1)(A) is also unconstitutional under Rehaif, because the § 924(c)(1)(A) conviction somehow “stemmed” from the § 922(g)(1) violation as well. (See, e.g., Dkt. No. 1 at 4; Dkt. No. 1-1 at 14.) Petitioner's arguments fail for several reasons.
The undersigned reiterates that § 924(a)(2) is simply the penalty provision for § 922(g)(1).
First, the Superseding Indictment in Petitioner's underlying criminal case establishes that the § 924(c)(1)(A) conviction (Count 5) pertained not to Petitioner's violation of § 922(g)(1) (Count 2), but to Petitioner's possession of a firearm during the robbery he committed in violation of 18 U.S.C. §§ 1951(a), (2) (Count 4). (See Crim. No. 59, Dkt. No. 18, stating, “[o]n or about March 16, 2005 . . . Byron Perkins, defendant herein, during and in relation to a drug trafficking crime for which he can be prosecuted in a court of the United States as described in Count 4 of this Indictment, used, carried and brandished a firearm. . . .”) Accordingly, Petitioner's § 924(c)(1)(A) conviction did not stem from or relate to his charge under § 922(g)(1).
Second, Rehaif does not affect the requirements for conviction under 18 U.S.C. § 924(c)(1)(A). See, e.g., Smith v. Fed. Correction Inst. Ashland, No. 0:20-cv-075-DCR, 2020 WL 4004214, at *2 (E.D. Ky. July 15, 2020) (declining to apply Rehaif to a § 924(c)(1)(A) conviction because “Rehaif did not address the requirements for prosecuting a defendant charged with possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)”); see also Matthews v. Bragg, No. 1:19-cv-3074-MBS, 2020 WL 1062868, at *2 (D.S.C. Mar. 5, 2020) (“Petitioner's conviction under § 924(c)(1)(A) is not implicated by Rehaif v. United States. . . .”). To be sure, § 924(c)(1)(A) does not require, and has nothing to do with, an offender's status as a felon or his knowledge thereof, which is the central element addressed in Rehaif. Thus, contrary to Petitioner's contentions, Rehaif has no bearing on the constitutionality of his conviction under § 924(c)(1)(A)-rather, it applies only to his charge under §§ 922(g)(1) and 924(a)(2).
But while Petitioner initially pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), the district court granted the Government's motion to dismiss this charge against Petitioner on July 29, 2009. (Crim. No. 59, Dkt. No. 109.) As a result, Petitioner was never actually convicted under 18 U.S.C. §§ 922(g)(1), 924(a)(2), and the ruling in Rehaif is therefore inapplicable to this case. (Crim. No. 59, Dkt. No. 116.) For these reasons, the undersigned finds that Petitioner cannot invoke the savings clause through Rehaif and recommends that his petition for habeas relief be denied as to this ground.
Notwithstanding the above, the undersigned notes that-although Rehaif does not apply to Petitioner's particular convictions here-application of this case would be impermissible in any event, as district courts within the Sixth Circuit have consistently held that Rehaif is not retroactive for purposes of collateral review. See, e.g., United States v. Burley, 4:15-cr-00352, 2020 WL 2126682, at *1 (N.D. Ohio May 5, 2020); Robertson v. United States, No. 2:19-cv-02791-TLP-TMP, 2020 WL 6852661, at *3 (W.D. Tenn. Nov. 20, 2020).
II. Petitioner's Career Offender Status Does Not Provide a Basis for Collateral Review
In his second ground for relief, Petitioner alleges that he is entitled to a resentencing because “[his] new attorney in 2009 did not review the record and did not investigate the convictions used for [Petitioner's] enhancement.” (Dkt. No. 1-1 at 14-15.) According to Petitioner, counsel “did not thoroughly investigate the state court convictions, as well as the proceeding's [sic] in the state court that led to the convictions. The potentials are endless as to what counsel might have discovered in the proceeding that could have led to a conviction being actually vacated.” (Dkt. No. 1-1 at 10.)
It is well-established, in both the Fourth and Sixth Circuits, that if a prisoner could have discovered the factual predicate to his new habeas claim at the time he filed his first petition, the petition is successive and falls outside the purview of § 2241. Galka v. Caruso, 599 F.Supp.2d 854, 856 (E.D. Mich. 2009). In the instant case, Petitioner's allegations that his attorney provided inadequate legal representation during sentencing could have, and should have, been raised in any one of Petitioner's earlier habeas motions before the trial court. See, e.g., Hernandez v. United States, No. 5:20-cv-00196-DLB, 2020 WL 6470166, at *4 (E.D. Ky. Nov. 2, 2020) (finding that ordinary errors involving sentencing court “must have been asserted before the trial court, on direct appeal, or in a motion pursuant to 28 U.S.C. § 2255”); Galka, 599 F.Supp.2d at 856 (declining collateral review where complaints about counsel's performance were apparent to the petitioner and could have been raised in the first habeas petition); see also In re Fowlkes, 326 F.3d 542, 546- 47 (4th Cir. 2003) (denying authorization of successive habeas petition where petitioner could have raised ineffective assistance claims in his initial petition). Thus, without more, Petitioner's allegations regarding his attorney's failure to effectively contest his career offender designation are insufficient to trigger the savings clause as contemplated by Wheeler.
Moreover, to the extent Petitioner intends to directly challenge the validity of his career offender status under the U.S. Sentencing Guidelines, any such argument is likewise insufficient to satisfy the requirements of the savings clause. As noted above, Petitioner's memorandum contains disorganized references to certain cases that, collectively, seem to challenge the status of Petitioner's predicate offenses as “crimes of violence” for purposes of his career offender enhancement. (See infra at p. 6 n.4.) However, “sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet the remarkably high bar” for habeas relief. See Snider v. United States, 908 F.3d 183, 190-91 (6th Cir. 2018) (referencing United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015)); see also Bullard v. United States, 937 F.3d 654, 657 (6th Cir. 2019) (holding that for those prisoners sentenced post-Booker, 543 U.S. 220 (2005), the validity of a defendant's career offender enhancement under the advisory Sentencing Guidelines is not cognizable on collateral review).
In other words, even if one of Petitioner's predicate offenses no longer qualifies as a “crime of violence” pursuant to an intervening change in law, the “misapplication of a subsequently-nullified career offender designation” does not affect the lawfulness of the sentence itself. Foote, 784 F.3d at 943; see also Snider, 908 F.3d at 191. Based on this well-settled principle, this Court has consistently held that a challenge to the validity of a petitioner's career offender enhancement under the Sentencing Guidelines does not constitute a fundamental defect as required under Wheeler. See, e.g., Jordan v. Bragg, No. 9:18-cv-01907-BHH, 2019 WL 4267518, at *3 (D.S.C. Sept. 9, 2019) (holding that challenge to a career offender designation that is nullified by subsequent law does not present an error sufficiently grave to be deemed a fundamental defect for purposes of the savings clause); Gibson v. Phelps, 827 Fed.Appx. 357, 358 (4th Cir. 2020) (same). The undersigned therefore finds Petitioner's allegations regarding his career offender status insufficient to invoke the savings clause and recommends that the petition be denied as to these second grounds for habeas relief.
The undersigned does not make that determination here.
Indeed, “under the advisory guidelines scheme, a career offender designation is, unlike a statute, only ‘one part of a series of guidelines meant to guide the district court to the proper sentence,' from which district courts are free to vary.” See Snider v. United States, 908 F.3d 183, 191 (6th Cir. 2018) (referencing United States v. Foote, 784 F.3d 931, 941 (4th Cir. 2015)). Here, for example, Petitioner's sentence was based not only on his career offender status, but also on the factors set forth in 18 U.S.C. § 3553(a). Specifically, the sentencing judge considered Petitioner's obstruction of justice when he absconded to Mexico, the escalation of Petitioner's violent conduct over the years, Petitioner's failure to show any remorse for his actions, his propensity to commit violence, and concerns for public safety. (See Crim. No. 59, Dkt. No. 122.) Thus, while Petitioner's designation as a career offender impacted his ultimate sentence, the district judge based his decision on multiple factors.
CONCLUSION
As stated above, the savings clause requirements are jurisdictional and cannot be waived. Thus, the undersigned RECOMMENDS that the Court DISMISS the petition for lack of jurisdiction, without prejudice and without requiring the respondent to file a return.
IT IS SO RECOMMENDED.
The parties' 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 835 Charleston, South Carolina 29402
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).