United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation
(“R&R”) (dkt. no. 16) of the Honorable James
E. Seibert, United States Magistrate Judge, to which the
pro se petitioner, Arthur Sean Warner
(“Warner”), has filed objections (dkt. no. 18).
For the reasons that follow, the Court OVERRULES Warner's
objections, ADOPTS the R&R, and DENIES and DISMISSES the
petition WITH PREJUDICE.
September 18, 2015, Warner filed a petition pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence (dkt. no. 1). In his petition, Warner sets forth the
following three grounds for relief:
(1) His counsel was ineffective in failing to move suppress
items found in a safe, the search of which was not covered
under the otherwise valid search warrant;
(2) His counsel was ineffective because he conspired with the
government to decline to investigate and object to a prior
conviction that served as a predicate offense for
Warner's career offender sentencing enhancement; and
(3) The Court incorrectly sentenced him as a career offender.
Id. at 5, 6, and 8. Warner asks the Court to vacate
his judgment, sentence, and plea, and to give him a two-level
reduction under Amendment 782 to the United States Sentencing
Guidelines (“U.S.S.G.” or
“guidelines”) and 28 U.S.C. § 994(o).
accord with LR PL P 2, the Court referred this matter to
Magistrate Judge Seibert for initial screening and an
R&R. Magistrate Judge Seibert directed the government to
file a response to the petition (dkt. no. 3). The government
did so (dkt. no. 9), asserting the following contentions:
(1) Warner had knowingly and voluntarily waived the right to
file a § 2255 motion incident to his plea, with the
exception of certain claims of ineffective assistance of
(2) Warner had procedurally defaulted all three claims in his
petition because he did not raise them on direct appeal;
(3) Warner's counsel was not ineffective for failing to
move to suppress items seized without a warrant, because the
search warrant specifically listed safes and lock boxes as
items to be seized;
(4) Warner's counsel was not ineffective for failing to
object to the application of the career offender enhancement
because, despite Warner's claim that one of his predicate
offenses should not count as he was serving a probationary
sentence for that offense at the time he was sentenced on the
instant charges, even without that conviction, he had been
convicted of at least two other serious felony drug offenses;
(5) Warner was not entitled to a two-level reduction because
he was sentenced under the 2014 sentencing guidelines, which
already included the two-level reduction under Amendment 782.
Dkt. No. 9 at 4-9.
reply to the government's contentions (dkt. no. 10),
Warner withdrew his ineffective assistance of counsel claim
regarding any failure to move to suppress the items found in
the safe; however, he continued to argue that he did not
qualify as a career offender. In addition, while the R&R
was pending, he moved to amend his petition in light of the
ruling of the Supreme Court of the United States in
Molina-Martinez v. United States, 136 S.Ct. 1338
(2016), to allege an additional claim based on inaccuracies
in the calculation of the sentencing guidelines.
R&R, Magistrate Judge Seibert concluded that Warner had
knowingly and voluntarily waived any collateral attack based
on ineffective assistance of counsel, either prior to or
during his sentencing. Further, even if Warner had not waived
such collateral attack, Magistrate Judge Seibert found that
his counsel had not been deficient in his representation by
failing to object to Warner's classification as a career
offender because Warner had at least two predicate offenses
that supported the Court's decision to sentence him as a
career offender. As to Warner's claim that counsel had
conspired with the government, the R&R concluded that
such a threadbare legal conclusion failed to meet the
heightened pleading standards required of habeas petitions.
Finally, Magistrate Judge Seibert recommended denying
Warner's motion to amend his petition to add a claim
based on inaccuracies in the calculation of the sentencing
guidelines because it was time-barred and did not relate
back. For all those reasons, he recommended that the Court
deny Warner's petition and dismiss it with prejudice.
sole objection to the R&R (dkt. no. 18), Warner argued
that he was not a career offender because his prior Arizona
convictions were not predicate offenses. He included copies
of certain sentencing documents related to his two Arizona
convictions in support of his arguments.
the R&R was pending review, Warner filed three motions
(dkt. nos. 19, 21, and 23) seeking to supplement his petition
to add arguments that 1) the decision of the Supreme Court of
the United States in Mathis v. United States, 136
S.Ct. 2243 (2016), further supported his claim that his
Arizona convictions were not predicate offenses, and 2)
Chang-Cruz v. United States, 659 Fed.Appx. 114 (3rd
Cir. 2016) (unpublished), supported his argument that the
statute forming the basis of his New Jersey conviction did
not qualify as a predicate offense. In support, Warner
attached copies of the relevant New Jersey judgment of
conviction (dkt. no. 21-1; dkt no. 23-1).
Court will review de novo any portions of the magistrate
judge's Report and Recommendation to which a specific
objection is made . . . and the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete V Gutierrez, 479 F.Supp.2d 600, 603-04
(N.D. W.Va. 2007) (citing Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983)).
objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the
purpose of an initial screening by the magistrate judge.
McPherson v. Astrue, 605 F.Supp.2d 744, 749
(S.D.W.Va. 2009) (citing Howard's Yellow Cabs, Inc.
v. United States, 987 F.Supp. 469, 474 (W.D. N.C.
1997)). Further, failure to raise “any specific error
of the magistrate's review” waives the claimants
right to a de novo review. Id. (citing
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982)). Likewise, “general and conclusory”
objections to the magistrate's R&R do not warrant a
de novo review by the District Court. Id.
(citing Howard's Yellow Cabs, 987 F.Supp. at
474); see also Green v. Rubenstein, 644 F.Supp.2d
723 (S.D.W.Va. 2009).