United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
Standing Order, this matter was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed
findings and recommendations (“PF&R”) for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
See Doc. No. 2.
Judge Tinsley submitted to the court his PF&R on March 3,
2017, in which he recommended that the Court dismiss
Petitioner's Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241 (Doc. No. 1); and dismiss this civil
action for lack of jurisdiction.
accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to
the Magistrate Judge's PF&R. The failure of any party
to file such objections within the time allotted constitutes
a waiver of such party's right to a de novo
review by this court. See Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989). Petitioner sought, see
Doc. No. 10, and this court granted, see Doc. No.
11, an extension of time for Petitioner to file his
Objections to the PF&R. Petitioner subsequently filed the
Objections to the Magistrate Judge's PF&R.
See Doc. No. 12. Petitioner also filed a
“Motion to Supplement, Alter, Amend or Relate Back to a
§ 2241 Habeas Corpus Writ.” Doc. No. 13.
Petitioner argues in his Objections to the PF&R that
“[Descamps v. United States, 133 S.Ct. 2276
(2013)] . . . is retroactively applicable to cases on direct
and collateral review.” Doc. No. 12. The Magistrate
Judge properly deduced in this case that
“Descamps does not create a new rule of
constitutional law made retroactive to cases on collateral
review. Doc. No. 9; see also Kane v. United States,
2016 WL 7404720, at *4 (W.D. N.C. Dec. 21, 2016) (holding
that “[b]ecause Descamps is not ‘a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable, ' a Descamps claim will not support
a successive motion to vacate.”); Payton v. United
States, 2016 WL 6996743, at *2 (D. Md. Nov. 30, 2016)
(“The basis of Payton's petition is the Supreme
Court's 2013 decision in Descamps, which the
Supreme Court has not made retroactive.”); Gibert
v. United States, 2015 WL 11111314, at *3 (D.S.C. Mar.
10, 2015), dismissed, 622 F. App'x 268 (4th Cir.
2015) (“[The court finds that the Supreme Court did not
create [in Descamps] a new rule that is retroactive
to cases on collateral review; Briscoe v. United
States, 2015 WL 2451420, at *2 (N.D. W.Va. May 21,
2015), appeal dismissed, 624 F. App'x 123 (4th
Cir. 2015) (collecting cases)). Therefore, the objection
Petitioner also argues in his Objections to the PF&R that
the Magistrate Judge erred in concluding that
“Petitioner's evading arrest . . . suffice[d] . . .
to sustain the 16-level indictment.” Doc. No. 12.
However, the United States Court of Appeals for the Fifth
Circuit determined that “even if categorizing
Vargas-Soto's manslaughter conviction as a crime of
violence were plain error, there was no substantial harm
because his separate conviction for evading arrest would have
been sufficient to support the same 16-level sentencing
enhancement.” United States v. Vargas-Soto,
700 F.3d 180 (5th Cir. 2012). Petitioner argues that the
Fifth Circuit's decision in United States v.
Garcia-Perez, 779 F.3d 278 (5th Cir. 2015), counts in
his favor. This is untrue. What Garcia-Perez says is
that “manslaughter as defined by the Florida statute of
conviction does not qualify as a crime of violence, and thus
the [16-level] increase was error.” Id. at
281. It does not concern a separate conviction that could
justify the 16-level increase, thus leaving the Fifth
Circuit's opinion in Vargas-Soto undisturbed.
Consequently, this objection too is without merit.
Petitioner's request, see Doc. No. 13, the court
must decide whether to grant the “Motion to Supplement,
Alter, Amend or Relate Back to a § 2241 Habeas Corpus
Writ.” Petitioner submits that Mathis v. United
States, 136 S.Ct. 2243 (2016), casts doubt on his Armed
Career Criminal Act (“ACCA”)-based sentence
enhancement. See id. Mathis holds that
“[when] the elements of [a state's] . . .
law” concerning a particular offense “are broader
than those of” the “generic [offense], [criminal]
convictions under that law cannot give rise to an ACCA
sentence.” Id. at 2257. The court finds itself
without the authority under Rule 15 of the Federal Rules of
Civil Procedure or the inclination to grant this Motion.
Justice would not so require or be better served by this.
Moreover, the court exhaustively has studied the documents
concerning this request for habeas relief as well as the
proceedings in the United States District Court for the
Northern District of Texas, which sentenced Petitioner.
See United States v. Vargas-Soto, 4:11-cr-00050-Y.
On the merits, Petitioner's Mathis argument
lacks merit. Under the “Motion to Supplement, Alter,
Amend or Relate Back to a § 2241 Habeas Corpus Writ,
” Doc. No. 13, Petitioner's request for appointment
of counsel should also be rejected.
the court determines:
Petitioner's Application for a Writ of Habeas Corpus
under 28 U.S.C. § 2241, see Doc. No. 1, is
civil action is DISMISSED for lack of jurisdiction;
Petitioner's “Motion to Supplement, Alter, Amend or
Relate Back to a § 2241 Habeas Corpus Writ, ”
see Doc. No. 13, is DENIED in its entirety; and
Clerk is directed to remove this matter from the docket of
the court has considered whether to grant a certificate of
appealability. See 28 U.S.C. § 2253(c). A
certificate will not be granted unless there is “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The standard is
satisfied only upon a showing that reasonable jurists would
find that any assessment of the constitutional claims by this
court is debatable or wrong and that any dispositive
procedural ruling is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court
concludes that the governing standard is not satisfied in
this instance. Accordingly, the court DENIES a certificate of
Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to ...