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Suggs v. Saad

United States District Court, N.D. West Virginia, Elkins

May 9, 2017

RICARDO SUGGS, JR., Petitioner,
v.
JENNIFER SAAD, Warden, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTONBAILEY UNITED-STATES DISTRICT JUDGE.

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc. 21]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Seibert filed his R&R on March 1, 2017, wherein he recommends this Court grant the respondent's Motion to Dismiss or in the Alternative, Motion for Summary Judgment, and deny and dismiss with prejudice the petitioner's § 2241 petition.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on March 3, 2017. [Doc. 22]. Following an extension of time in which to file objections [Doc. 24], the petitioner timely filed his Objection on March 27, 2017. [Doc. 26]. Accordingly, this Court will review the portions of the R&R to which the petitioner objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         I. BACKGROUND

         On March 1, 2006, the petitioner was arrested by local law enforcement in Brooke County, West Virginia, and charged with Possession with Intent to Deliver, Carrying a Dangerous Weapon, DUI-2nd, Driving while License Suspended for DUI, and Obstructing an Officer. [Doc. 14-1 at 2-3]. On March 16, 2006, pursuant to a motion to transfer, all charges in the Brooke County Circuit Court resulting from the March 1, 2006, arrest were dismissed. [Id. at 3, 13]. On June 6, 2006, the petitioner was indicted in the United States District Court for the Northern District of West Virginia and charged with Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). [Id. at 14]. The petitioner was released on a personal recognizance bond on June 8, 2006. [Id. at 16].

         The petitioner's felon in possession charges were set for trial to begin on July 26, 2006. [Crim. Doc. 31].[1] Early on July 21, 2006, one of the Government's key witnesses in the case and that witness' mother were shot in their home, both of whom survived and identified the petitioner as the individual who shot them. The petitioner was arrested in Steubenville, Ohio later that day and charged with two counts of Aggravated Burglary and two counts of Felonious Assault. [Doc. 14-1 at 3, 19]. He was placed in custody in the Jefferson County, Ohio jail. [Id. at 19]. Also on July 21, 2006, the United States District Court for the Northern District of West Virginia issued a warrant for the petitioner's arrest in Case No. 5:06-CR-27 for a pretrial release violation notice. [Crim. Doc. 47]. Following execution of the arrest warrant, the petitioner's bond was revoked, he was returned to federal custody, and the state charges were referred for federal prosecution. [Doc. 14-1 at 3].

         The petitioner's federal trial was continued, and on August 2, 2006, a Superseding Indictment was filed, charging the petitioner with Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Tampering with a Witness - Intent to Kill, in violation of 18 U.S.C. § 1512(a)(1)(A); Tampering with a Witness - Use of Force, in violation of 18 U.S.C. § 1512(a)(2)(A); and Tampering with a Witness - Corruptly Persuade, in violation of 18 U.S.C. § 1512(b)(1). [Crim. Doc. 68]. On November 2, 2006, the petitioner moved to bifurcate Count One, Felon in Possession of a Firearm, from the later-added counts, requesting separate trials to accomplish his stated goal of not testifying as to Count One while testifying as to the other counts. The motion to bifurcate was granted. [Crim. Doc. 107].

         On November 8, 2006, after a two-day jury trial as to Count One, the petitioner was found guilty of being a felon in possession of a firearm. [Crim. Doc. 115]. On January 11, 2007, after a three-day jury trial on the remaining counts, the petitioner was found guilty of Tampering with a Witness - Intent to Kill (Count Two) and Use of Force (Count Three), but not of Tampering with a Witness - Corruptly Persuade (Count Four). [Crim. Doc. 150]. On April 16, 2007, the petitioner was sentenced on all three counts to a total term of 324-months' imprisonment, which was the lowest end of the Guideline range, to be followed by a three-year term of supervised release. [Crim. Doc. 169].

         The petitioner timely appealed. On February 19, 2008, by unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit affirmed the petitioner's convictions and sentence. [Crim. Doc. 186].

         The petitioner filed a Motion to Vacate under 28 U.S.C. § 2255 on May 27, 2009, alleging four grounds of ineffective assistance of counsel. [Crim. Doc. 195]. By Memorandum Opinion and Order entered March 30, 2011, Magistrate Judge David J. Joel's Report and Recommendation was adopted, and the petitioner's § 2255 motion was denied and dismissed. [Crim. Doc. 226]. The petitioner appealed, and the Fourth Circuit dismissed the appeal and denied the petitioner a certificate of appealability by unpublished per curiam opinion. [Crim. Doc. 236].

         In accordance with Program Statement 5880.28, Sentence Computation Manual (CCCA-1984), and 18 U.S.C. § 3585(a), the Bureau of Prisons prepared a sentence computation for the petitioner, commencing his 324-month sentence on April 16, 2007. [Doc. 14-1 at 3]. The petitioner was given prior custody credit for March 2, 2006, June 8, 2006, and from July 21, 2006, through April 15, 2007, for a total of 271 days. [Id.]. He is projected to earn 1270 days of Good Conduct Time, generating a Good Conduct Time release date of January 25, 2030. [Id. at 4].

         A. Petitioner's § 2241 Motion

         On August 12, 2016, the petitioner filed a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241 on the correct form. [Doc. 6]. Therein, the petitioner raises three claims:

(1) the Federal Bureau of Prisons unlawfully computed his sentence by incorrectly computing his good time credits and denying him relief after he went through the administrative procedures;
(2) “recent decisions” by the Supreme Court of the United States have left him with an unconstitutional sentence, specifically because the district judge sentenced the petitioner beyond that offense's “minimum;”
(3) the district court's misconstruction, which involved easing the Government's burden of proof, resulted in an amended indictment, leaving the petitioner “actually innocent.”

[Id. at 5-6]. The petition also states that the petitioner exhausted his administrative remedies. [Id. at 7]. As relief, the petitioner requests that this Court grant a writ of habeas corpus, appoint counsel, grant reasonable bail, vacate the convictions “under § 1512 (Count 2 and 3 in the indictment), ” and resentence under the “correct guidelines.” [Id. at 8]. The petitioner did not file a supporting ...


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