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Warner v. United States

United States District Court, N.D. West Virginia

June 1, 2017

ARTHUR SEAN WARNER, Petitioner,
v.
UNITED STATES OF AMERICA Respondent. Criminal No. 1:14CR81

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. BACKGROUND

         On 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).

         In 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 counsel;
(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; and
(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.

         In his 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.

         In his 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.

         In his 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.

         While 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).

         II. STANDARD

         “The 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)).

         Vague 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).

         III. DISCUSSION

         Warner did not object to the R&R's conclusions that his motion to amend was untimely, or that he had inadequately pleaded his proposed additional claim that the probation officer improperly calculated the guidelines. Nor does he object to the R&R's conclusion that he inadequately pleaded a conspiracy between his counsel and the government. His sole objection is that he does not qualify as a career offender. Consequently, as to those portions of the R&R to which Warner did not object, the Court finds no clear error and adopts the reasoning in those portions as its own. Further, the Court GRANTS Warner's motions to supplement his petition to add his arguments related to the rulings in Mathis and Chang-Cruz (dkt. nos. 19, 21, and 23). ...


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