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Luczak v. Coakley

United States District Court, N.D. West Virginia, Elkins

May 30, 2019

CASEY LUCZAK, Petitioner,
v.
JOE COAKLEY, Warden, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY UNITED STATES DISTRICT JUDGE.

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James P. Mazzone [Doc. 11]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on April 4, 2019, wherein he recommends this Court deny and dismiss petitioner's § 2241 Petition [Doc. 1]; deny as moot petitioner's Motion for Habeas Corpus Relief and for Interim Conditional Release [Doc. 2] and Motion for Expedited Service [Doc. 3]; and deny petitioner's Motion Pursuant to Rule 15(d) [Doc. 10].

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a ate 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, failure to file timely objections constitutes a waiver of cte novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Mazzone's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). Petitioner filed his Objections on May 3, 2019 [Doc. 16]. Accordingly, this Court will review the portions of the R&R to which the petitioner objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         BACKGROUND

         Petitioner does not object to the R&R's recitation of the factual background and procedural history. Thus, rather than reiterating such in detail, this Court will only briefly summarize that which is most relevant.

         On January 15, 2010, after more than two days on trial, petitioner pled guilty to 23 counts of wire fraud and one count of making a false statement. He was sentenced in the District of Nevada to 121 months to be followed by a five-year term of supervised release. Restitution in the amount of $4, 288, 158.74 was also imposed.

         Petitioner filed a direct appeal claiming that his counsel was ineffective, the district court erroneously applied a two-level enhancement for use of "sophisticated means," and that his gambling addiction was not taken into consideration for sentencing. The Ninth Circuit affirmed the sentence.

         Petitioner has also filed numerous post-conviction and habeas corpus motions and opened new case numbers, alleging claims including prosecutorial misconduct, ineffective assistance of counsel, unconstitutional sentencing, his indictment was tainted, improper seizure of his assets, Bivens violations, that he is actually innocent of one of the counts, he has not received all his "good time" credits, and that because of his age he should be granted early release. All of these motions and claims were denied by different courts.

         In the instant Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241, petitioner argues that (1) the First Step Act mandates 54 days of good conduct time to be awarded, which petitioner believes means he should have been released earlier than the BOP release date; and (2) his supervised release term must be reduced from five to three years because no financial institution was affected, the maximum term of supervised release for his wire fraud cannot be more than three years, and his presentence investigation report ("PSR") was tampered with. On April 9, 2019, petitioner was released from prison.

         APPLICABLE LAW

         Where, as here, a petitioner seeks to attack the imposition of his sentence rather than its execution, he may only seek a writ of habeas corpus pursuant to § 2241 by demonstrating that § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e) (the "savings clause"); see also In re Jones, 226 F.3d 328 (4th Cir. 2000). Relief under § 2255 is not inadequate or ineffective merely because relief has become unavailable under § 2255 because of a limitation bar, the prohibition against successive petitions, or a procedural bar due to failure to raise the issue on direct appeal. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).

         In United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit held that § 2255 is inadequate or ineffective to test the legality of a sentence when all of the following four conditions are met:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this ...

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