United States District Court, N.D. West Virginia
WARNER B. CRIDER, Petitioner,
S. KALLIS, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY 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. 20]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Seibert for submission of a proposed report
and a recommendation ("R & R"). Magistrate
Judge Seibert filed his R&R on December 19, 2017, wherein
he recommends this Court deny and dismiss the
petitioner's § 2241 petition without prejudice, and
deny the respondent's motion to transfer.
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
(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 receipt, pursuant to 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72(b). The petitioner filed
timely objections on January 3, 2018 [Doc. 22].
petitioner makes three objections. First, the petitioner
objects to the magistrate judge's determination that this
Court lacks the jurisdiction to consider his § 2241
petition, on the grounds that Rice v. Rivera, 617
F.3d 802 (4th Cir. 2010), is not good law in light of the
Supreme Court's prior decision in Arbaugh v. Y&H
Corp., 546 U.S. 500, 511 (2006). While the petitioner
asserts that Rice is a "drive-by jurisdictional
ruling" and that "Arbaugh requires the
Fourth Circuit to reconsider Rice, " it is
unclear what about Rice requires reconsideration.
First, Rice was decided in 2010, four years after
the Supreme Court issued the decision in Arbaugh.
Second, the Fourth Circuit was clearly aware of and
considered Arbaugh when deciding Rice, as
the Fourth Circuit cited Arbaugh in a footnote
regarding whether another rule was jurisdictional.
Rice, 617 F.3d 802, 810 n.7. Third, the Fourth
Circuit has continued to dismiss cases without prejudice for
want of jurisdiction where the petitioner has failed to show
that § 2255 is inadequate or ineffective. See, e.g.,
Moore v. Stewart, 2018 WL 333138 (4th Cir. Jan. 9,
2018); Redd v. Wilson, 703 Fed.Appx. 196 (4th Cir.
Nov. 21, 2017); Meredith v. Andrews, 700 Fed.Appx.
283 (4th Cir. Nov. 7, 2017); Brandon v. Wilson, 699
Fed.Appx. 283 (4th Cir. Nov. 1, 2017). As such, this
objection is OVERRULED.
the petitioner objects to the R&R's use of United
States v. Poole, 531 F.3d 263 (4th Cir. 2008), and
argues that Poole was incorrectly decided because
the decision in Poole would have been different had
that petitioner argued that Rice was a
"drive-by jurisdictional argument." This Court cannot
predict what the Fourth Circuit would have done had the
petitioner in Poole made the arguments advanced in
the instant matter, and will not do so as the arguments that
the petitioner has made here were not unavailable when
Poole was decided.
R&R, Magistrate Judge Seibert cites Poole once,
for the proposition that the savings clause "does not
extend to petitioners who challenge only their
sentences." [Doc. 20, p. 5]. The citation was not in
error. The petitioner asserts that the manner in which
Poole is used is inappropriate, based on the factual
distinctions between the instant petition and the facts in
Poole. While the petitioner does correctly note that
Poole is not on all fours with the facts of this
particular case, the R&R does not rely upon
Poole for its particular facts. Rather, the R&R
cites to Poole for its general assertion of the
law-a general assertion of the law that the Fourth Circuit
has repeatedly cited in the context of § 2241 petitions.
See, e.g., Anderson v. Andrews, 2018 WL 317269 (4th
Cir. Jan. 8, 2018); Meredith v. Andrews, 700
Fed.Appx. 283 (4th Cir. Nov. 7, 2017); see also Farrow v.
Revell, 541 Fed.Appx. 327, 328 (4th Cir. Oct. 9, 2013)
(finding challenge to armed career criminal status is not
cognizable in a § 2241 petition, and citing to
Poole); Darden v. Stephens, 426 Fed.Appx. 173, 174
(4th Cir. April 29, 2011) (declining to extend reach of
savings clause to sentence challenges).
this Court were to assume that the Fourth Circuit would
overrule Rice and hold that §
2255(e) is not a jurisdictional rule, but a claim-processing
rule, the petitioner would still not be entitled to review on
the merits or relief. The key distinction between the instant
action and Wheeler, upon which the petitioner
heavily relies, is that in Wheeler the Government
initially conceded that Wheeler was entitled to relief under
the savings clause. United States v. Wheeler, No.
16-6073; see also Wheeler v. United States, 2015 WL
5726038 (W.D. N.C. Sept. 30, 2015) (The Government has filed
a response noting that Petitioner is not entitled to relief
under § 2255 because he has not obtained authorization
to file a successive petition, but joins Petition in
contending that relief under § 2241 is
appropriate."). No. such waiver has been made here, and
as such even if the Fourth Circuit did consider §
2255(e) a claims-processing rule, the petitioner would not be
entitled to relief. Accordingly, this objection is OVERRULED.
the petitioner objects to the recommendation that his
petition be dismissed without a consideration of the merits.
The petitioner states in support that the Fourth Circuit is
likely to render a decision in his favor in
Wheeler, and thus that dismissal of
his petition without a review of the merits, even without
prejudice, would be a waste of judicial resources, as
petitioner will simply file a notice of appeal.
Court simply cannot choose, under the law in this Circuit, to
ignore the requirements of § 2255(e) and review the
petitioner's claims on the merits. It is not certain that
any opinion in Wheeler would affect petitioner's
claim here, as this Court will not speculate on how far the
Fourth Circuit will go in changing its current precedent, if
at all. See also Walker v. Kassell, 2017 WL 6503990,
*2(N.D. W.Va. Dec. 19, 2017) (declining to speculate as to
the outcome of Wheeler). However, if a favorable
decision in Wheeler could allow petitioner to assert
the type of claim he brings here, petitioner is free to bring
his petition again at that time (as this petition will be
dismissed without prejudice), and this Court will then review
the petition on its merits. Until then, however, this Court
must follow current Fourth Circuit precedent, and therefore
must dismiss the petition for want of jurisdiction. As such,
this objection is OVERRULED.
careful review of the above, it is the opinion of this Court
that the Report and Recommendation [Doc. 20] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated
in the magistrate judge's report. Accordingly, this Court
ORDERS that the petitioner's § 2241 petition [Doc.
1] be DENIED and DISMISSED WITHOUT PREJUDICE. Additionally,
the Respondent's Motion to Transfer [Doc. 15] is DENIED.
This Court further DIRECTS the Clerk to enter judgment in
favor of the respondent and to STRIKE this case from the
active docket of this Court.
final matter, upon an independent review of the record, this
Court hereby DENIES a certificate of appealability, finding
that Mr. Crider has failed to make "a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2).
Clerk is directed to transmit copies of this Order to any
counsel of record and to mail a ...