United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTONBAILEY UNITED-STATES DISTRICT JUDGE.
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.
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.
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
petitioner's felon in possession charges were set for
trial to begin on July 26, 2006. [Crim. Doc.
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].
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.
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].
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].
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].
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].
Petitioner's § 2241 Motion
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
(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
(3) the district court's misconstruction, which involved
easing the Government's burden of proof, resulted in an
amended indictment, leaving the petitioner “actually
[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