United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
Standing Order, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed
findings and recommendation. Magistrate Judge Tinsley
submitted his proposed findings and recommendation on March
3, 2017. In that Proposed Findings and Recommendation
("PF&R"), Magistrate Judge Tinsley recommended
that the district court dismiss plaintiff's petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241 and remove
this matter from the court's docket.
accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Tinsley's Findings and Recommendation. The failure of any
party to file such objections constitutes a waiver of such
party's right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989);
Thomas v. Arn, 474 U.S. 140 (1985). Moreover, this
court need not conduct a de novo review when a petitioner
"makes 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. 1982).
receiving an extension of time to do so, on April 24, 2017,
Hernandez filed his objections to the PF&R. With respect
to those objections, the court has conducted a de novo
jury trial occurring in August and September of 1998, a jury
in the United States District Court for the Eastern District
of Michigan found Hernandez guilty of conspiracy to possess
cocaine with intent to distribute; murder-for-hire; aiding
and abetting an intentional killing; aiding and abetting a
firearms murder in relation to a drug trafficking crime; and
witness tampering. Hernandez v. United States, Crim.
No. 95-cr-80272, 2017 WL 131561, *1 (E.D. Mich. Jan. 13,
2017); see also United States v. Reyes, 51 Fed.Appx.
488, 493 (6th Cir. 2002) . On May 20, 1999, Hernandez was
sentenced to four concurrent terms of life imprisonment and a
concurrent term of 120 months on the witness tampering
conviction. See id.
Judge Tinsley concluded that plaintiff's claim was
properly considered under 28 U.S.C. § 2255, and not 28
U.S.C. § 2241, because he was challenging the validity
of the sentence imposed by the United States District Court
for the Eastern District of Michigan. Motions under §
2255 are to be filed in the sentencing court. However,
because plaintiff had not obtained authorization to file a
second or successive § 2255, Magistrate Judge Tinsley
determined that plaintiff's motion should be dismissed
rather than transferred to the sentencing court. Magistrate
Judge Tinsley also found that transferring the action would
likely be futile because Hernandez would not be entitled to
relief on the claims raised herein.
course of discussing the procedural history of
plaintiff's case, Magistrate Judge Tinsley referred to
plaintiff's first § 2255 motion, which was filed in
the United States District Court for the Eastern District of
Michigan. The magistrate judge noted that the motion was
denied on January 13, 2017. See PF&R at p.3 (ECF
sole objection is to the PF&R's statement that his
§ 2255 motion in the Eastern District of Michigan had
been denied. Specifically, Hernandez writes:
This court has inaccurately stated that on January 13, 2017,
[t]he United States District Court for the Eastern District
of [M]ichigan denied the Petitioner's § 2255 motion
as untimely. ... To date [April 24, 2017], the § 2255
Motion Civil No. 2:16-cv-13355-GER is still pending before
the Sentencing Court; therefore, Petitioner would [r]equest
that this court will, if anything, transfer the Petition.
at p.l (ECF No. 12). However, Hernandez is the one who is
mistaken - his § 2255 motion was denied on January 13,
2017 and the action was dismissed, in its entirety, with
prejudice. See Hernandez v. United States, Crim. No.
95-cr- 80272, 2017 WL 131561, *3 (E.D. Mich. Jan. 13, 2017) .
Furthermore, for the reasons noted by Magistrate Judge
Tinsley, transfer of this motion to that court would be
on the foregoing, the court hereby OVERRULES
plaintiff's objection and CONFIRMS and ACCEPTS the
factual and legal analysis contained within the Proposed
Findings and Recommendation. Accordingly, the court
DISMISSES plaintiff's petition for Writ
of Habeas Corpus and DIRECTS the Clerk to
remove this matter from the court's docket.
the court has considered whether to grant a certificate of
appealability. See 28 U.S.C. § 2253(c). A
certificate will not be granted unless there is "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). The standard is
satisfied only upon a showing that reasonable jurists would
find that any assessment of the constitutional claims by this
court is debatable or wrong and that any dispositive
procedural ruling is likewise debatable. Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court
concludes that the governing standard is not satisfied in
this instance. Accordingly, the court DENIES
a certificate of appealability.
Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of ...