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Clark v. Coakley

United States District Court, N.D. West Virginia

December 11, 2017

ELKINS CHARLES CLARK, Petitioner,
v.
JOE COAKLEY, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY 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. 6]. 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 October 1');">11');">1, 201');">17, wherein he recommends this Court deny and dismiss the petitioner's motion without prejudice.

         BACKGROUND

         Petitioner was indicted in 1');">1991');">1 for various cocaine offenses, including conspiracy to possess with intent to distribute and possession with intent to distribute cocaine in violation of 21');">1 U.S.C. §§ 846 and 841');">1 (a)(1');">1). Clark v. United States, 201');">14 WL 3535556, at*1');">1 (S.D. Fla. July 1');">16, 201');">14), Petitioner was found guilty by a jury and convicted on both counts. The Government filed a second offender notice, and the petitioner was sentenced to life imprisonment pursuant to 21');">1 U.S.C. § 851');">1. Id. at *2. Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Eleventh Circuit, which affirmed the district court's judgment. Id.; United States v. Clark, 84 F.3d 436 (1');">11');">1th Cir. 1');">1996).

         Petitioner then filed a series of applications for post-conviction relief. He filed his first habeas petition pursuant to 28 U.S.C. § 2255 on December 1');">13, 1');">1996. Clark v. United States, 201');">14 WL 3535556, at *2. The petition was denied. Petitioner then unsuccessfully filed for a sentence reduction pursuant to 1');">18 U.S.C. §§ 3582 and 3559. Id. Petitioner filed his second habeas petition on February 1');">11');">1, 201');">13, "[taking] issue with the fact that he proceeded to trial, rather than entering a plea." Id. (liberally construing the petitioner's argument). The petition was denied as untimely. Id. Petitioner appealed the denial and sought a certificate of appealability, which the district court denied; petitioner then appealed the denial of the certificate of appealability.

         Petitioner filed his third habeas petition on June 2, 201');">14, in which he argued that he was actually innocent of the § 851');">1 second offender enhancement and that "it was a miscarriage of justice to enhance his sentence based upon a prior invalid conviction." Id. The petition was dismissed as successive. Id. The petitioner filed his fourth habeas petition on June 1');">16, 201');">14, and argued the same grounds as in his previously denied third habeas petition-that he was actually innocent of the § 851');">1 enhancement and that the enhancement was a miscarriage of justice. Id. This petition was dismissed due to petitioner's failure to obtain authorization to file a second or successive § 2255 motion. Id. Petitioner filed his fifth habeas petition on June 26, 201');">14, which was, again, dismissed as an unauthorized successive petition.

         On August 31');">1, 201');">17, the petitioner filed his sixth habeas petition in this Court pursuant to 28 U.S.C. § 2241');">1 [Doc. 1');">1]. As his sole ground for relief, the petitioner alleges that because of the United States Supreme Court's decision in Mathis v. United States, 1');">136 S.Ct. 2243');">1');">136 S.Ct. 2243 (June 23, 201');">16), he is actually innocent of the prior drug conviction that supported the § 851');">1 enhancement that resulted in a life sentence [Doc. 1');">1, p. 5]. Petitioner alleges that this ground was not previously presented "in this form" because of the recent decision in Mathis [Doc. 1');">1, p. 7]. In support, the petitioner argues that his prior conviction is no longer a felony offense after Mathis, and thus he did not properly qualify for the § 851');">1 enhancement and is actually innocent of the enhanced sentence [Doc. 2].

         In his R&R, Magistrate Judge Seibert concluded that the petition must be denied and dismissed without prejudice, because the petitioner could not satisfy the savings clause of § 2255(e). The petitioner fails to meet the savings clause so as to bring a claim under § 2241');">1 because he only argues that he is innocent of a sentencing enhancement, not that a change in law rendered him actually innocent of the underlying conviction.

         APPLICABLE LAW

         Pursuant to 28 U.S.C. § 636(b)(1');">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. Am, 47'A U.S. 1');">140, 1');">150 (1');">1985). Nor is this Court required to conduct a de novo review when the party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1');">1982).

         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');">1); Snyder v. Ridenour, 1');">1363');">889 F.2d 1');">1363, 1');">1366 (4th Cir. 1');">1989); United States v. Schronce, 1');">1');">727 F.2d 91');">1, 94 (4th Cir. 1');">1984). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner, 1');">19');">404 U.S. 51');">19, 520 (1');">1972); Gordon v. Leeke, 1');">11');">147');">574 F.2d 1');">11');">147, 1');">11');">151');">1 (4th Cir. 1');">1971');">1).

         Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (1');">14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1');">1) and Rule 72(b) of the Federal Rules of Civil Procedure. On October 20, 201');">17, the petitioner filed a motion for extension of time [Doc. 8]. This Court granted the motion and extended the deadline to file objections to November 20, 201');">17 [Doc. 9]. The petitioner timely filed his Objections to the Magistrate Judge Report and Recommendation [Doc. 1');">11');">1] on November 6, 201');">17. Accordingly, this Court will review the portions of the R&R to which objection was filed under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         DISCUSSION

         The petitioner raises two objections to the R&R, which this Court will address in turn. The two objections overlap in many respects, as they both derive from the same basic objection-that Magistrate Judge Seibert erred by determining that Mathis had no impact upon the criminality of the underlying conviction, and that the ...


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