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Jerecki v. United States

United States District Court, S.D. West Virginia, Charleston Division

January 2, 2018

THOMAS JERECKI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner Thomas Jerecki's motion filed pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (the “§ 2255 Motion”). (ECF No. 90.) Also before the Court is Petitioner's Motion to Hold § 2255 Filing in Abeyance. (ECF No. 91.) On June 29, 2016, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of proposed findings of fact and recommendations for disposition (“PF&R”). (ECF No. 94.) Magistrate Judge Eifert filed her PF&R on December 6, 2017, recommending that this Court deny as untimely Petitioner's § 2255 Motion, deny as moot the motion to hold his § 2255 Motion in abeyance, and dismiss this action with prejudice. (ECF No. 113.) Petitioner filed timely objections to the PF&R on December 7, 2017. (ECF No. 114.)

         For the reasons that follow, the Court OVERRULES Petitioner's objections, (id.), ADOPTS the PF&R, (ECF No. 113), DENIES as untimely Petitioner's § 2255 Motion, (ECF No. 90), DENIES AS MOOT the Motion to Hold § 2255 Filing in Abeyance, (ECF No. 91), DISMISSES this case, and DIRECTS the Clerk to remove this matter from the Court's docket.

         I. BACKGROUND

         On December 14, 1998, Petitioner was sentenced to a term of imprisonment of 262 months followed by a five-year term of supervised release for his conviction on one count of conspiracy to distribute and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. (United States v. Jerecki, No. 6:98-cr-00111, ECF No. 29.) As noted in the transcript from Petitioner's sentencing, the Court found that Petitioner was a career offender because he had “a prior crime of violence and a prior drug conviction.” (ECF No. 37 at 26, 28.) Specifically, Petitioner had prior convictions in California for possession of a controlled substance, theft by force and fear, and assault with a deadly weapon. (See ECF No. 47 at 11-12.) The Court adopted the Presentence Investigation Report's application of the career offender enhancement pursuant to United States Sentencing Guidelines Section 4B1.1 and sentenced him at the bottom of the Guideline range. (See Id. at 9; ECF No. 37 at 32.)

         Petitioner appealed the Court's judgment, alleging “that he was not informed that he could be sentenced as a career offender before he entered a guilty plea.” United States v. Jerecki, No. 98-4917, 1999 WL 98248, at *1 (4th Cir. Oct. 29, 1999) (per curiam). The Fourth Circuit affirmed Petitioner's sentence. See Id. (noting that the defendant did not object to his career offender status from the presentence report and finding that “the district court is not required to inform the defendant what the sentencing guideline range will be before accepting his guilty plea”). (See also ECF Nos. 48, 49.) Almost a year later, Petitioner filed a Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 alleging various constitutional violations. (ECF No. 51.) The Court dismissed that § 2255 petition, and the Fourth Circuit subsequently dismissed Petitioner's appeal and denied a certificate of appealability. (ECF Nos. 64, 71, 73.)

         Petitioner filed the instant second or successive § 2255 Motion on June 27, 2016.[1]Therein, he asserts that the Supreme Court's Johnson decision, see Johnson v. United States, 135 S.Ct. 2551 (2016), invalidates Petitioner's status as a career offender “because his prior convictions for theft by force or fear and assault with a deadly weapon in California no longer qualify as crimes of violence under any portion of the career offender definition.” (See ECF No. 90 at 1, 4-14.) The United States filed a response on October 31, 2016, (ECF No. 107), and Petitioner later filed his reply on December 29, 2016, (ECF No. 108). On March 23, 2017, Petitioner filed a supplemental memorandum in support of his § 2255 Motion in light of the Supreme Court's ruling in Beckles, see Beckles v. United States, 137 S.Ct. 886 (2017), arguing that the holding in that case only applies to the current advisory Sentencing Guidelines and not the previous, mandatory version under which Petitioner was sentenced. (ECF No. 109.) The United States responded to Petitioner's supplemental memorandum on May 10, 2017, (ECF No. 111), and Petitioner filed a reply on May 24, 2017, (ECF No. 112). The issuance of the PF&R followed.

         II. PF&R AND OBJECTIONS

         Magistrate Judge Eifert's recommendation that the § 2255 Motion be denied is based on her finding that this Court is constrained by the Fourth Circuit's holding in United States v. Brown, 868 F.3d 297 (4th Cir. 2017), in which the Fourth Circuit explicitly rejected the argument Petitioner advances here. The Magistrate Judge explained the holding of Johnson, where the Supreme Court “found that the catchall definition of ‘violent felony' contained in the [Armed Career Criminal Act's (“ACCA”)] residual clause was unconstitutionally vague because it left too much uncertainty as to what acts and crimes would qualify as violent felonies.” (ECF No. 113 at 3 (citing 18 U.S.C. § 924(e)(2)(B); 135 S.Ct. at 2557-58).) Magistrate Judge Eifert then discussed the Supreme Court's subsequent decision in Beckles, wherein the Supreme Court “determined that the residual clause in the Guidelines was not unconstitutionally vague” and that the holding in Johnson did not extend to invalidate the advisory Sentencing Guidelines. (Id. at 4 (citing 137 S.Ct. at 892).)

         After noting that it is unclear whether the Guidelines' residual clause[2] played a role in Petitioner's categorization as a career offender under Section 4B1.1, the Magistrate Judge found it irrelevant because the argument is foreclosed by the Fourth Circuit's determination in Brown. (Id. at 5-6 (citing 868 F.3d at 299).) Brown dictates that under Beckles, “the similarity of the residual clause in the Guidelines to the ACCA ‘is not enough to bring a challenge within the purview of the right recognized by Johnson.'” (Id. at 7 (citing 868 F.3d at 303) (“Therefore, the Fourth Circuit held that at least for purposes of collateral review, courts must wait for the Supreme Court to rule that the residual clause in the mandatory version of the Guidelines is unconstitutionally vague.”).) Based on the Fourth Circuit's decision in Brown, the Magistrate Judge ultimately found that Petitioner's claim here is untimely under § 2255(f).[3]

         Petitioner first objects “to the implication that he bears any burden of showing that this Court, in imposing his original sentence in 1998, utilized the residual clause of U.S.S.G. § 4B1.2(a)(2) in determining that he was a career offender.” (ECF No. 114 at 1.) He argues that he has no obligation to do so under § 2255 and that “[i]t is enough that the residual clause may have been utilized.” (Id. at 2.) Second, Petitioner objects to the recommendation that the § 2255 Motion be dismissed as untimely as it was filed within one year of Johnson and notes that the Fourth Circuit's decision in Brown is contrary to findings in other circuits and may be reheard or eventually appealed to the Supreme Court. (Id. at 2.) For the following reasons, the Court OVERRULES the objections.

         III. LEGAL STANDARD

         The Court is required to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1).

         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 “when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). When a party does make objections, but the objections are so general or conclusory that they fail to direct the Court to any specific error by the magistrate judge, de novo review is unnecessary. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Failure to file a specific objection thus constitutes a waiver of the right to de novo review. Se ...


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