United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the petitioner's Emergency Motion to
Correct Sentence Under 28 U.S.C. § 2255 [ECF No. 82].
This action was referred to the Honorable Dwane L. Tinsley,
United States Magistrate Judge, for submission to this court
of proposed findings of fact and recommendation for
disposition (“PF&R”), pursuant to 28 U.S.C.
§ 636(b)(1)(B). The Magistrate Judge has submitted
findings of fact and has recommended that the court deny the
petitioner's § 2555 motion.
petitioner timely filed written objections [ECF No. 102], and
the Government did not respond. Having reviewed de novo the
portions of the PF&R to which the petitioner objects, the
court FINDS that the petitioner's
arguments are without merit and DENIES the
petitioner's § 2255 Motion [ECF No. 82].
neither party objects to the Magistrate Judge's factual
findings, the court adopts and incorporates them in full.
Magistrate Judge issues a recommendation on a dispositive
matter, the court reviews de novo those portions of the
Magistrate Judge's report to which specific objections
are filed. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). When a party files an objection that
is too general or conclusory to focus attention on any
specific error supposedly committed by the Magistrate Judge,
the court need not conduct a de novo review. See Diamond
v. Colonial Life & Accident Ins., 416 F.3d 310, 316
(4th Cir. 2005); Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). Moreover, when a party fails to object to a
portion of the Magistrate Judge's report, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation. See
Diamond, 416 F.3d at 315. The court has discerned two
objections, which I will be discuss in turn.
Teague v. Lane and Its Progeny Provide the Correct
petitioner first objects to the Magistrate Judge failing to
consider the merits of his Descamps,
Mathis, and Hinkle arguments as outlined in
his pro se filing [ECF No. 96]. These decisions (“the
Predicate Offense Cases”) address the application of
the categorical approach when determining whether a prior
conviction is a predicate offense for the career offender
guideline sentencing enhancement. Specifically, under the
Predicate Offense Cases, the petitioner argues that two of
his felony convictions are no longer considered predicate
offenses under § 4B1.2 of the United States
Magistrate Judge found that the petitioner could not rely on
the Predicate Offense Cases because none of those cases
announced a new rule of constitutional law that has been made
retroactive on collateral review. [ECF No. 99 at 5-6].
However, because the petitioner's § 2255 Motion was
filed within one year of his judgment becoming final and is
not a second or successive petition, relying on whether the
Predicate Offense Cases announced a new rule of
constitutional law made retroactive was error.
Compare § 2255(f)(1) (a § 2255 motion may
be filed within one year of “the date on which the
judgment of conviction becomes final”) with
§ 2255(f)(3) (if after one year from the conviction
becoming final, then, inter alia, a year from “the date
on which the right asserted was initially recognized by the
Supreme Court”); see also United States v.
Thomas, 627 F.3d 534, 536 (4th Cir. 2010) (recognizing
that a new right under 2255(f)(3) can be based “upon
the ground that the sentence was imposed in violation of the
Constitution or laws of the United States”)
(emphasis added); cf. § 2255(h) (second
petitions require, inter alia, “a new rule of
Teague and its progeny provide the correct
analytical framework as to whether the petitioner can make
substantive arguments under the Predicate Offense Cases on
collateral review. To that extent, the petitioner's
objection is sustained. Nevertheless, as discussed below, his
§ 2255 Motion still fails.