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Shrader v. State

United States District Court, S.D. West Virginia, Bluefield

January 17, 2019

THOMAS SHRADER, Plaintiff,
v.
STATE OF WEST VIRGINIA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge

         By 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.

         In 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).

         Shrader 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.

         On June 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, [1] 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.

         As 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 convictions;
(2) Shrader's petition must be treated as a petition for a writ of error coram nobis over which the court lacks jurisdiction;
(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).

         A. Shrader is not "in custody"

         Shrader's 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 at p.2.

         A 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 ...


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