Kevin F. McDonald, United States Magistrate Judge
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The petitioner, proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2241 seeking habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
The petitioner's § 2241 petition was entered on the docket on November 24, 2020 (doc. 1). By order dated December 22, 2020, the undersigned informed the petitioner that his case was not in proper form and provided him with an opportunity to bring his case into proper form, including the filing of an amended petition (doc. 4). The petitioner complied with the court's order, filing an amended petition (doc. 6), and bringing his case into proper form for review. Nevertheless, for the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
ALLEGATIONS
The petitioner is currently serving a twenty-five year sentence for trafficking cocaine imposed by the Charleston County General Sessions Court. See Charleston County Public Index, https://publicindex.sccourts.org/Charleston/PublicIndex/PISearch.aspx (enter the petitioner's name and K297480) (last visited February 1, 2021). The petitioner was found guilty after a jury trial. Id. The petitioner did not appeal his conviction or sentence. Id.
The petitioner then filed a post conviction relief (“PCR”) action in the Charleston County Court of Common Pleas attacking this charge on January 4, 2010. See Charleston County Public Index (enter the petitioner's name and 2010-CP-10-00041) (last visited February 1, 2021). The PCR was dismissed on October 20, 2010, and the petitioner did not file an appeal. Id. The petitioner filed a second PCR action in the Charleston County Court of Common Pleas on May 24, 2016. See Charleston County Public Index (enter the petitioner's name and 2016-CP-10-02701) (last visited February 1, 2021). The second PCR was dismissed and no appeal was filed. Id. The petitioner filed a third PCR application in the Charleston County Court of Common Pleas on July 28, 2017. See Charleston County Public Index (enter the petitioner's name and 2017-CP-10-03852) (last visited February 1, 2021). The third PCR was dismissed and no appeal was filed. Id.
As his only ground for relief in the instant matter, the petitioner asserts that he was sentenced in excess of the sentence allowed under the United States Sentencing Guidelines (“USSG”) (doc. 6 at 6). For relief, the petitioner seeks to have his sentence corrected (id. at 7).
APPLICABLE LAW & ANALYSIS
The undersigned has reviewed the 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 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (percuriam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can 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, 391 (4th Cir. 1990).
Here, the petitioner, a state prisoner, seeks relief pursuant to 28 U.S.C. § 2241 regarding his conviction for trafficking cocaine (doc. 6). However, “when a prisoner being held ‘pursuant to the judgement of a State court' files a habeas petition claiming the execution of his sentence is in violation of the Constitution, laws, or treaties of the United States, the more specific § 2254” applies. See In re Wright, 826 F.3d 774, 779 (4th Cir. 2016). In light of the foregoing, on December 22, 2020, the court sent special interrogatories to the petitioner for completion (doc. 4-1). The interrogatories noted that “[t]ypically, a state prisoner's challenge to the manner of execution of his sentence may only be raised under 28 U.S.C. § 2254” and provided the petitioner with the opportunity to indicate which statute under which he was seeking relief (doc. 9). The petitioner responded to the special interrogatories that he was pursuing relief under § 2241, not § 2254, and he submitted an amended petition seeking relief under § 2241 (docs. 6; 9). However, as noted, the petitioner cannot proceed in this matter pursuant to § 2241; as such, his petition is subject to summary dismissal.
Even presuming this matter was brought pursuant to § 2254, the petitioner is not entitled to relief on the ground alleged in his amended petition. As noted, the petitioner's only asserted ground for relief is that his sentence is incorrect under the United States Sentencing Guidelines (“USSG”) (doc. 6 at 6). However, the USSG promulgates “detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.” U.S. Sentencing Guidelines Manual § 1A1 Intro. (U.S. Sentencing Comm'n 2018) (emphasis added). Here, as noted above, the petitioner is currently incarcerated pursuant to a state (not federal) conviction for trafficking cocaine that was imposed by the Charleston County General Sessions Court. See Charleston County Public Index (enter the petitioner's name and K297480) (last visited February 1, 2021). As such, the USSG do not apply to the petitioner's conviction; thus, the petition is subject to summary dismissal.
RECOMMENDATION
The undersigned is of the opinion that the petitioner cannot cure the defects identified above by amending his petition. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Socy, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Com. Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).