United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Robert W. Trumble. ECF No. 282 in
3:05-CR-40. Pursuant to Rule 2 of the Local Rules of Prisoner
Litigation Procedure, this action was referred to Magistrate
Judge Trumble for submission of a proposed Report and
Recommendation. Magistrate Judge Trumble filed his Report and
Recommendation on November 20, 2017. In that filing, he
recommended that the Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence be denied and dismissed as a
second or successive motion.
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, de
novo or under 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 Petitioner's right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984).
objections to Magistrate Judge Trumble's Report and
Recommendation were originally due within fourteen (14) days
after being served with a copy pursuant to 28 U.S.C. §
636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure. However, the Court granted the Petitioner an
extension, directing him to file objections on or before
January 5, 2018. The Petitioner timely filed his objections
on January 2, 2018. ECF No. 290 in 3:05-CR-40. Accordingly,
this Court will undertake a de novo review of those portions
of Magistrate Judge Trumble's findings to which objection
is made. This Court will review the remainder of the Report
and Recommendation for clear error.
8, 2006, the Petitioner entered a written plea agreement [ECF
No. 88 in 3:05-CR-40] and was convicted of possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). The Petitioner was determined to be a
career offender pursuant to United States Sentencing
Guidelines § 4B1.1 because: (1) the Petitioner's
criminal history included four prior offenses involving
controlled substances; (2) the instant offense was a felony
involving a controlled substance; and (3) the Petitioner was
eighteen years or older at the time of its commission.
Petitioner did not file a direct appeal, however, on July 27,
2007, the Petitioner filed a Motion to Vacate pursuant to 28
U.S.C. § 2255. Magistrate Judge Seibert entered a Report
and Recommendation concluding that the Petitioner's
motion should be granted on the issue that the Petitioner
requested counsel to file an appeal and counsel ignored or
refused the direction. After Judge Bailey adopted the Report
and Recommendation, the Petitioner was re-sentenced to 210
months of incarceration followed by a four-year term of
supervised release. Following his sentencing, the Petitioner
filed a direct appeal with the Fourth Circuit Court of
Appeals. On April 8, 2011, the Fourth Circuit affirmed the
district court and dismissed the Petitioner's appeal.
the Petitioner filed his second Motion to Vacate pursuant to
28 U.S.C. § 2255 raising various grounds for relief,
including lack of subject matter jurisdiction and errors by
the district court. The district court denied and dismissed
the motion to vacate, and the Fourth Circuit Court of Appeals
April 7, 2016, the Petitioner filed his third Motion to
Vacate under 28 U.S.C. § 2255, wherein he argued that
his career offender status was no longer valid pursuant to
the decision in Johnson v. United States, which the
district court ultimately denied as a second or successive
motion. Shortly after, the Petitioner sought authorization
from the Fourth Circuit to file a successive habeas
application on the same grounds. On June 14, 2016, the Fourth
Circuit denied Petitioner's motion for authorization to
file a successive habeas application stating that Johnson
v. United States “has no impact on [the
Petitioner's] career offender status.” Fourth
Circuit Court of Appeals docket 16-397, ECF No. 8. On June
28, 2016, Petitioner sought another authorization from the
Fourth Circuit to file a second or successive § 2255
petition on the same grounds. Again, the Fourth Circuit
denied authorization stating that, “Johnson
has no impact on Richardson's career offender
status.” Fourth Circuit Court of Appeals docket
16-9729, ECF No. 6.
March 10, 2017, the Petitioner filed the instant motion
pursuant to § 2255, his fourth sequential motion. ECF
No. 273, 280 in 3:05-CR-40. The Petitioner asserts two
grounds for relief: (1) that he was improperly sentenced as a
career offender; and (2) that his criminal history was
improperly calculated. On November 20, 2017, Magistrate Judge
Trumble reviewed the Petitioner's motion and recommended
this Court deny the petition. On January 2, 2018, the
Petitioner filed his objections. Therefore, this issue is
ripe for the Court's review.
motion pursuant to 28 U.S.C. § 2255 requests that the
sentencing court vacate, set aside, or correct the sentence
on one of the following grounds: (1) the sentence was imposed
in violation of the Constitution or laws of the United
States, (2) the court was without jurisdiction to impose such
sentence, (3) the sentence was in excess of the maximum
authorized by law, or (4) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
a second or successive petition, 28 U.S.C. § 2255(h)
states: “A second or successive motion must be
certified as provided in section 2244 by a panel of the
appropriate court of appeals.” The referenced §
2244 provides that, “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. §
2244(3)(A). However, “not every numerically second
petition is a ‘second or successive'
petition.” United States v. Hairston, 754 F.3d
258, 262 (4th Cir. 2014). In order for a petition to be
considered successive, the first petition must have been
dismissed on the merits. Harvey v. Horan, 278 F.3d
370, 379 (4th Cir. 2002).