United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed the Petitioner's June 23, 2016
Emergency Motion to Correct Sentence Under 28 U.S.C.
§ 2255 (Document 10), brought on the grounds that his
sentence as a career offender is improper in view of
Johnson v. United States, 135 S.Ct. 2251 (2015).
Standing Order (Document 9) entered on June 27,
2016, this action was referred to the Honorable Omar J.
Aboulhosn, United States Magistrate Judge, for submission to
this Court of proposed findings of fact and
recommendation for disposition, pursuant to 28 U.S.C. §
636. On August 8, 2017, Magistrate Judge Aboulhosn submitted
a Proposed Findings and Recommendation (PF&R)
(Document 23) wherein it is recommended that this Court grant
the Petitioner's Motion to Dismiss § 2255
Motion (Document 21) and dismiss the
Petitioner's Section 2255 motion from the Court's
docket. The United States timely filed its Objections to
Proposed Findings and Recommendation (Document 24).
BACKGROUND AND PROCEDURAL HISTORY
2011, the Petitioner, Samuel Garwood, was convicted of three
counts of bank robbery. On May 4, 2012, he was sentenced as a
career offender under Section 4B1.1 of the United States
Sentencing Guidelines based on prior bank robbery convictions
in 2002 and 2004, which the Court considered to be
“crimes of violence.” On June 23, 2016, in view
of the United States Supreme Court's decision in
Johnson, Mr. Garwood, through court-appointed
counsel, filed an emergency Section 2255 motion to have his
2012 sentence corrected. On July 19, 2016, the United States
filed a motion (Document 15) to stay Mr. Garwood's action
pending the Supreme Court's decision in Beckles v.
United States, 136 S.Ct. 2510 (2016). While that motion
was still pending, on May 17, 2017, Mr. Garwood filed a
motion to voluntarily dismiss his Section 2255 petition in
response to the Supreme Court's decision in
Beckles. The United States did not object to the
dismissal of Mr. Garwood's emergency motion, but
requested that the petition be dismissed with prejudice
rather than without prejudice. Magistrate Judge Aboulhosn
recommended that this Court grant Mr. Garwood's motion
and dismiss the petition without prejudice.
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). 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, this Court need not conduct a
de novo review when a party “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). When reviewing portions of the
PF&R de novo, the Court will consider the fact that
Plaintiff is acting pro se, and his pleadings will
be accorded liberal construction. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d
1291, 1295 (4th Cir.1978).
PF&R, Magistrate Judge Aboulhosn recommends that Mr.
Garwood's motion to voluntarily dismiss be granted and
his Section 2255 Petition be dismissed without prejudice.
Judge Aboulhosn reasoned that the petition should be
dismissed without prejudice because the Court will not be
ruling on the merits of the petition. Judge Aboulhosn found
that, while the United States would not be prejudiced by a
dismissal of the Plaintiff's Section 2255 petition
without prejudice, it would be prejudicial to the Petitioner
to dismiss the petition with prejudice. Judge Aboulhosn
reasoned that a dismissal with prejudice would constitute a
denial of the motion, and render any future filing of a
Section 2255 petition a second or successive motion requiring
authorization from the Fourth Circuit. Because Mr. Garwood
seeks to voluntarily dismiss his petition without the Court
having reached any decision on the merits, Judge Aboulhosn
recommended dismissal without prejudice so that a future
attempt by Mr. Garwood to present a Section 2255 motion would
not be encumbered.
United States argues that to dismiss the Petitioner's
Section 2255 motion without prejudice would be prejudicial to
the United States and would be “at odds with the
structure and purpose of habeas review under [Section]
2255.” (United States' Obj., at 2.) The United
States argues that dismissal without prejudice will be
prejudicial because it may force it to defend against another
Section 2255 motion with “different and distinct
grounds, ” and because it would unfairly give Mr.
Garwood more than the “one clear shot” of
challenging his conviction for which he is entitled.
(Id. at 3.)
Court finds that the United States' objections should be
overruled. In Johnson, the Supreme Court ruled that
the residual clause of the Armed Career Criminal Act,
defining violent felonies to include a crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another, ” is
unconstitutionally vague. Johnson v. United States,
135 S.Ct. 2551, 2555-57 (2015). The Supreme Court
subsequently held that Johnson's reasoning was
not applicable to challenges to the similar definition of a
crime of violence contained in the advisory sentencing
guidelines, given that the Guidelines “merely guide the
district courts' discretion.” Beckles v. United
States, 137 S.Ct. 886, 894 (2017) (addressing only the
advisory Guidelines, and not opining as to the
constitutionality of the residual clause of the career
offender provision in the mandatory Guidelines). In response
to the Beckles decision, Mr. Garwood, through
counsel, moved to voluntarily dismiss his Section 2255
motion, with the likely understanding that it would be
unsuccessful, and the United States agrees that such action
is appropriate. Given that the Court has failed to reach the
merits of Mr. Garwood's motion, it would be improper to
dismiss the issue with prejudice.
Magistrate Judge Aboulhosn pointed out, the record does not
reflect that the United States has spent considerable time in
defending the motion. Further, because the merits of this
petition have not been addressed, the United States'
argument that dismissal without prejudice would unfairly
allow Mr. Garwood more than one attempt at a Section 2255
motion is tenuous. Mr. Garwood has not had any of the
merits of this Section 2255 motion addressed, and
thus, would not be afforded more than one attempt at
challenging his conviction if he filed another petition that
was addressed on its merits. Therefore, Mr. Garwood's
petition should be dismissed without prejudice.
after thorough review and careful consideration, the Court
ORDERS that the United States Objection
to Proposed Findings and Recommendation (Document 24) be
OVERRULED and that the Magistrate
Judge's Proposed Findings and Recommendation
(Document 23) be ADOPTED. The Court further
ORDERS that the Petitioner's Motion
to Dismiss § 2255 Motion (Document 21) be
GRANTED, that the Motion of the United
States to Withdraw Referral to Magistrate Judge and Stay Case
Pending Supreme Court Ruling (Document 15) and the
Motion of the United States to Withdraw Referral to
Magistrate Judge and to Dismiss (Document 19) be
TERMINATED AS MOOT, that ...