United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DENYING AND
DISMISSING PLAINTIFF'S PETITION
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner, a federal inmate at FPC
Duluth, filed a motion under 28 U.S.C. § 2255. The
petitioner is serving a sentence for one count of conspiring
to distribute fifty or more grams of cocaine base and for
aiding and abetting in the distribution of cocaine base
within 1, 000 feet of a protected location. ECF No.
at 2. Between his original conviction and bringing this
action, the petitioner has filed an appeal based on
ineffective assistance of counsel, a § 2255 motion
arguing ineffective assistance of counsel, a motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2), a
motion for relief from judgment under Federal Rule of Civil
Procedure 60(b), a second motion to reduce sentence under 18
U.S.C. § 3582(c)(2), two successive motions under 28
U.S.C. § 2244, and finally a second motion under §
2255, the instant motion. ECF No. 695 at 3-5. Since filing
the instant motion, the petitioner has filed two § 2244
motions with the United States Court of Appeals for the
Fourth Circuit. ECF No. 695 at 6-7.
petition, the petitioner appears to argue that his sentence
should be reduced because he contends he should have received
a minor role reduction. ECF No. 667 at 5-6. Although the
petitioner cites Amendment 782 of the United States
Sentencing Guidelines, as the respondent notes, from the
context it seems clear the petitioner is referring to
Amendment 794. ECF No. 670 at 2. The petitioner argues that a
minor role reduction should have been applied because he
claims that his role in the crime was minimal and that he did
not know any of the other defendants who testified against
him. ECF No. 667 at 6. In particular, the petitioner claims
that he could not have benefitted from the criminal activity
because he did not have the money to pay his electricity
bill. ECF No. 667 at 6.
direction of the magistrate judge, the government filed a
response on the issue of whether the petitioner was entitled
to equitable tolling on his most recent § 2255 motion.
ECF No. 670. In the response, the government argues that the
petitioner is merely raising the same ineffective assistance
argument as in his previous failed motions and his appeal,
adding only that his counsel was ineffective in that the
petitioner did not receive a “minor role”
reduction to his sentence. ECF No. 670 at 2. The respondent
notes that the petitioner draws language from Amendment 794
of the Sentencing Guidelines, but that this amendment does
not establish a new right to a sentence reduction. ECF No.
670 at 2. The respondent points out that the “minor
role” reduction has been in existence since long before
the petitioner was sentenced, and thus this is not “new
law” which would entitle the petitioner to equitable
tolling. ECF No. 670 at 2.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge Michael John Aloi. The magistrate judge
entered a report and recommendation. ECF No. 695. In that
recommendation, the magistrate judge recommended that the
petitioner's § 2255 motion be denied and dismissed
for three reasons. ECF No. 695 at 11. First, the petition is
untimely and the petitioner has offered no basis for
equitable tolling. ECF No. 695 at 10. Second, the amendments
the petitioner refers to were already in effect prior to his
second and successive habeas petitions, so the petitioner
cannot argue that he now relies on a “new law” in
his petition. ECF No. 695 at 10. Finally, the magistrate
judge found that the petitioner cannot simultaneously claim
that he is both completely innocent of the crime and that he
should have received a lesser sentence for his minor role in
the crime. ECF No. 695 at 10. Accordingly, the magistrate
judge found that the petitioner has not shown that the Court
should consider his successive § 2255 motion. ECF No.
695 at 11.
magistrate judge advised the parties that, pursuant to 28
U.S.C. § 636(b)(1)(C), any party may file written
objections to his proposed findings and recommendations
within 14 days after being served a copy of the report and
recommendation. Neither party filed any objections to the
report and recommendation.
reasons set forth below, the report and recommendation of the
magistrate judge is affirmed and adopted, and, accordingly,
the amended petition is denied and dismissed.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because no objections were filed, all findings and
recommendations will be upheld unless they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A). As the Supreme Court of the United States
stated in United States v. United States Gypsum Co.,
“a finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 333 U.S.
364, 395 (1948).
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge correctly held the pro se petition
to less stringent standards than those complaints drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the magistrate judge correctly determined
that the instant petition is an unauthorized second and
successive petition. ECF No. 695 at 10. As the magistrate
judge noted, the petitioner has not offered any basis for
equitable tolling. ECF No. 695 at 10. Further, Amendment 794
did not establish “new law, ” available to the
petitioner. ECF No. 695 at 10. Finally, the magistrate judge
correctly found that the petitioner cannot simultaneously
argue for a minor role reduction and maintain his total
innocence. ECF No. 695 at 10.
this Court finds that the findings of the magistrate judge
are not clearly erroneous. Accordingly, the report and