United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner's Objections to the
Proposed Findings and Recommendation
(“PF&R”). ECF No. 115. For the following
reasons, the Court ADOPTS AND INCORPORATES
HEREIN the Magistrate Judge's PF&R, ECF No.
113, GRANTS Petitioner's Motion to
Withdraw Amendment, ECF No. 108, and DENIES
Petitioner's Motion and Second Amendment under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence, ECF
Nos. 68, 109. Furthermore, the Court DENIES as
moot, Petitioner's Second Emergency Motion for
Bond Pending Resolution of 28 U.S.C. 2255. ECF No. 116.
February 3, 2015, Petitioner entered an informed guilty plea
to a single-count information charging him with conspiracy to
distribute 100 grams or more of heroin. Criminal Action No.
3:15-00009, ECF Nos. 5, 8, 10. He was sentenced on September
8, 2015, and this Court found the two-point gun enhancement
under U.S.S.G. § 2D1.1(b)(1) applied. Id., ECF
Nos. 44, 47. Petitioner subsequently filed his motion,
pro se, under 28 U.S.C. § 2255 on June 8, 2016.
ECF No. 68. In it, he alleges ineffective assistance of
counsel as a means to attack his plea. Id.
then moved to amend his motion, arguing the applicability of
Johnson v. United States. ECF No. 71.
However, on October 22, 2018, Petitioner concurrently filed a
withdrawal of that motion, ECF No. 108, along with another
amendment to address the applicability of the two-point gun
enhancement, ECF No. 109. After consideration of
Petitioner's motions, Magistrate Judge Omar J. Aboulhosn
filed the present PF&R on April 2, 2019, in which he
recommends that Petitioner's motions be denied, and the
case removed from the docket. ECF No. 113. Plaintiff filed
timely objections to the PF&R on April 15, 2019. ECF No.
reviewing the PF&R, this Court must “make a de novo
determination of those portions of the . . . [Magistrate
Judge's] proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). In
doing so, the Court can “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” Id. The Court, however, is
not required to review the factual or legal conclusions of
the Magistrate Judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Courts will
uphold those portions of a recommendation to which no
objection has been made unless they are “clearly
erroneous.” See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
party acts pro se, the Court must liberally construe
his pleadings and objections. Estelle v. Gamble, 429
U.S. 97, 106 (1976). However, failure to raise specific
errors waives the right to de novo review because
“general and conclusory” objections do not
warrant such review. McPherson v. Astrue, 605
F.Supp.2d 744, 749 (S.D. W.Va. 2009) (citing Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
“[V]ague objections to the magistrate judge's
findings prevents the district court from focusing on
disputed issues and thus renders the initial referral to the
magistrate judge useless.” Id. (internal
submission offers general objections to (1) the magistrate
judge's findings on ineffective assistance of counsel as
it pertains to his plea agreement and (2) the application of
the two-level gun enhancement under U.S.S.G. 2D1.1(b)(1),
supporting these objections with mere restatements of his
arguments as presented to the magistrate judge.
first objection, Petitioner retreads his argument, without
making any specific objection as to which parts of the
PF&R he believes are flawed. Compare ECF No.
115, at 2-3; with ECF No. 113, at 8-9. As shown in
the record, and explained in the PF&R, this Court
properly found Petitioner made a knowing, informed, and
voluntary plea. Criminal Action No. 3:15-00009, ECF No. 31,
at 25-26, 32-40; ECF No. 113, at 10-13. Accordingly,
Petitioner's first objection is
OVERRULED as a conclusory objection.
the second objection, Petitioner completely fails to object
to any finding in the PF&R. Akin to his first objection,
Petitioner offers a general objection as to the application
of the two-level gun enhancement applied at his sentencing
and outlines his argument as presented to the magistrate
judge. Compare ECF No. 115, at 4-6; with
ECF No. 113, at 17. However, the magistrate judge's
findings on this issue do not address the merits of this
application, but instead conclude Petitioner waived any right
to appeal this matter. ECF No. 113, at 19. Accordingly,
Petitioner's objection does not apply to the PF&R and
is thus OVERRULED.
above listed reasons, the Court ADOPTS AND
INCORPORATES HEREIN the Magistrate Judge's
PF&R, ECF No. 113, GRANTS
Petitioner's Motion to Withdraw Amendment, ECF No. 108,
and DENIES Petitioner's Motion and
Second Amendment under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence, ECF Nos. 68, 109. Furthermore, the
Court DENIES asmoot
Petitioner's Second Emergency Motion for Bond Pending