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 August
23, 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 plaintiff
“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).
timely filed objections to the PF&R. (ECF No. 10). On
November 13, 2018, he also filed a "Motion to Grant Writ
of Habeas Corpus" which is a supplement to his
earlier-filed objections. (ECF No. 11). With respect to those
objections, the court has conducted a de novo review.
8, 2010, a federal grand jury within the Southern District of
West Virginia returned a three-count second superseding
indictment against Shrader. Counts One and Two charged
Shrader with using a facility of interstate commerce to cause
the delivery of a threatening communication, in violation of
18 U.S.C. § 2261A(2), while Count Three charged him with
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). After jury trials occurring in July
and August of 2010,  Shrader was convicted on all counts.
United States v. Thomas Creighton Shrader, Criminal
Action No. 1:09-00270. On November 18, 2010, Shrader was
sentenced to imprisonment for a term of 235 months, followed
by a five-year term of supervised release. Based upon three
prior 1976 West Virginia convictions, Shrader was sentenced
under the Armed Career Criminal Act (the "ACCA")
which increased his sentencing exposure on the felon in
possession count from a ten-year maximum sentence to a
mandatory minimum 15-year sentence.
Magistrate Judge Tinsley noted in his PF&R, in the
instant case, Shrader is attacking the validity of the 1976
convictions in West Virginia state court that were used to
enhance the federal sentence he is currently serving.
Magistrate Judge Tinsley concluded that Shrader could not do
so for the following reasons:
(1) Shrader was not "in custody" for the purpose of
challenging the validity of his 1976 West Virginia
(2) Shrader's petition must be treated as a petition for
a writ of error coram nobis over which the court lacks
(3) Shrader's petition is time-barred; and
(4) Shrader's petition is a second or successive petition
and an abuse of the writ of habeas corpus.
See PF&R at pp. 6-13 (ECF No. 9).
Shrader is not "in custody"
first objection is to the PF&R's conclusion that he
was not in custody for purposes of challenging his 1976
convictions. According to him, "Shrader is not a State
prisoner who could have filed a § 2254. Shrader's
action is State action due to prior State convictions having
a very adverse effect upon Shrader's Federal Sentence
under the Armed Career Criminal Act, (ACCA)." ECF No. 10
review of the record confirms Magistrate Judge Tinsley's
conclusion that Shrader is seeking to attack the validity of
his 1976 convictions in this federal proceeding. This he ...