United States District Court, S.D. West Virginia, Beckley 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, Pursuant to 28
U.S.C § 2255 (Document 86), brought on the grounds,
inter alia, that his sentence is improper in view of
Johnson v. United States, 135 S.Ct. 2251 (2015).
Standing Order (Document 87) 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 May 17,
2018, Magistrate Judge Aboulhosn entered his Proposed
Findings and Recommendation (PF&R) (Document 103)
recommending that the Section 2255 motion be denied. On May
18, 2018, the Petitioner filed Movant's Objections to
the Proposed Findings and Recommendations (Document 104)
through his counsel, David R. Bungard, Assistant Federal
BACKGROUND AND PROCEDURAL HISTORY
January 11, 2010, the Petitioner, David Jackson, pled guilty
to one count of Distribution of a Quantity of Cocaine Base in
violation of 21 U.S.C. §8419(a)(1). On June 3, 2010, he
was sentenced as a career offender under § 4B1.1 of the
United States Sentencing Guidelines based on a prior
conviction for aggravated assault, which the Court considered
to be a “crime of violence” and a conviction for
conspiracy to distribute cocaine base, classified as a
controlled substance offense. On June 17, 2010, the
Petitioner filed a notice of appeal to the Fourth Circuit,
which affirmed the conviction and sentence on June 20, 2011.
On June 26, 2015, the Supreme Court issued its decision in
Johnson v. United States, 135 S.Ct. 2551 (2016),
which prompted Mr. Jackson, through counsel, to file an
emergency Section 2255 motion to have his 2010 sentence
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).
PF&R, Magistrate Judge Aboulhosn reasoned that the
Petitioner's reliance on Johnson v. United
States, 135 S.Ct. 2551 (2015), for relief under U.S.S.G
§ 4B1.2(a)(2) of the sentencing guidelines is misplaced,
because of the Supreme Court's holding in Beckles v.
United States, 137 S.Ct. 886 (2017). 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). In Beckles, the Supreme Court held that the
residual clause in U.S.S.G. § 4b1.2(a) was not
unconstitutionally vague because the Guidelines do not fix
the permissible range of sentences, rather, they
“merely guide the exercise of the court's
discretion in choosing an appropriate sentence within the
statutory range.” Id. at 892. With guidance
from the Beckles Court, Magistrate Judge Aboulhosn
concluded that the Petitioner's argument that the holding
in Johnson extends to the “residual
clause” in the career offender section of the
Guidelines lacked merit.
Petitioner makes two objections that he wishes to preserve
for appellate review, both of which the Court overrules.
Petitioner's first objection is to an alleged implication
embedded in the PF&R that the Petitioner bears the burden
of showing that this Court utilized the residual clause of
U.S.S.G § 4B1.2(a)(2) in determining he was a career
offender. The Court notes the objection and preserves it for
appellate review, but as the movant concedes, the substance
of this objection is immaterial and does not impact the
recommendations proposed in the PF&R.
Petitioner's second objection is to the recommendation
that his § 2255 petition be dismissed because it was
filed untimely. Although the United States argues the issue
of timeliness in response to the Petition, the Magistrate
Judge does not recommend that the Court dismiss the
Petitioner's claim as untimely in the PF&R. Rather,
the recommendation is that the Court deny the
Petitioner's motion on the merits. Therefore, the Court
finds that there is no need to address the substance of this
objection, but again, it is preserved for appellate review.
after thorough review and careful consideration, the Court
ORDERS that the Movant's Objection
to Proposed Findings and Recommendation (Document 104)
be OVERRULED and that the Magistrate
Judge's Proposed Findings and Recommendation
(Document 103) be ADOPTED. The Court further
ORDERS that the Petitioner's
Emergency Motion to Correct Sentence Under 28 U.S.C.
§ 2255 (Document 86) be DENIED and
that this matter be dismissed and stricken from the
Court DIRECTS the Clerk to send a certified
copy of this Order to Magistrate Judge Aboulhosn, to counsel