United States District Court, S.D. West Virginia, at Bluefield
MEMORANDUM OPINION AND ORDER
A. FABER, SENIOR UNITED STATES DISTRICT JUDGE
Standing Order, this matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings of fact and recommendations regarding disposition
pursuant to 28 U.S.C. § 636(b)(1). Magistrate Judge
Aboulhosn submitted his Findings and Recommendation
(“PF&R”) to the court on May 15, 2018, in
which he recommended that this court deny Haskins's
motion under 28 U.S.C. § 2255 and remove this matter
from the court's docket. In so doing, Magistrate Judge
Aboulhosn found that, pursuant to United States v.
Brown, 868 F.3d 297, 304 (4th Cir. 2017), Haskins's
motion was untimely.
accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days plus three mailing days
in which to file any objections to Magistrate Judge
Aboulhosn's Findings and Recommendations. On May 21,
2018, plaintiff, through counsel, filed objections to the
magistrate judge's Findings and Recommendation. In those
objections, counsel for Haskins acknowledges that this court
is bound by Fourth Circuit precedent but, in order to
preserve the issue for appellate review, maintains that
Brown was wrongly decided.
as Haskins concedes, this court is bound by the
Brown decision. See Adkins v. United
States, Civil Action No. 2:16-cv-05725, 2018 WL 3715746,
*1 (S.D. W.Va. Aug. 3, 2018) (Copenhaver, J.) (denying §
2255 motion as foreclosed by Brown because even
though “the court recognizes the thoughtful analysis in
movant's objections, the conclusion reached by the
magistrate judge is in keeping with Fourth Circuit
foregoing reasons, plaintiff's objections are
OVERRULED. The court ADOPTS
the findings and conclusions contained in Magistrate Judge
Aboulhosn's PF&R, DENIES
plaintiff's motion Under 28 U.S.C. § 2255 and
DIRECTS the Clerk to remove this case from
the court's active docket.
the court has considered whether to grant a certificate of
appealability. See 28 U.S.C. § 2253(c). A
certificate will not be granted unless there is “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The standard is
satisfied only upon a showing that reasonable jurists would
find that any assessment of the constitutional claims by this
court is debatable or wrong and that any dispositive
procedural ruling is likewise debatable. Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court
concludes that the governing standard is not satisfied in
this instance. Accordingly, the court DENIES
a certificate of appealability.
Clerk is DIRECTED to send copies of this
Memorandum Opinion and Order to counsel of record.
The court acknowleges that
Brown is contrary to decisions from several other
federal appeals courts. See, e.g., Moore v.
United States, 871 F.3d 72, 82 (1st Cir. 2017). However,
as another district court recently made clear in denying a
certificate of appealability, “Brown is now
settled law in this circuit”. Beckham v. United
States, 3:16-cv-470-GCM, 2018 WL 6018864, *2 (W.D. N.C.
Nov. 16, 2018). The Beckham decision noted:
The Court recognizes that Chief Judge Gregory wrote a
dissent in the Fourth Circuit's Brown decision
arguing that the petitioner there should be entitled to
relief under Johnson and Beckles. The Court
also recognizes that Justice Sotomayor wrote a dissent in the
Supreme Court's decision denying the petition for
certiorari in Brown, in which Justice Ginsburg
joined. Nevertheless, the Court of Appeals' decision in
Brown is binding. Whether this Court or other
reasonable jurists may differ on whether Brown was
correctly decided, it cannot reasonably be disputed that the
holding of Brown is binding on this Court and on
subsequent panels of the Court of Appeals.