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Shrader v. United States

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

August 27, 2019

THOMAS C. SHRADER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER, UNITED STATES DISTRICT JUDGE.

         The Court has reviewed the Petitioner's June 21, 2016 motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence (Document 463), brought on the grounds that, inter alia, he was wrongfully subject to an enhanced sentence under the Armed Career Criminal Act (ACCA).

         By Standing Order (Document 458) entered on June 21, 2016, this action was referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. On June 27, 2019, the Magistrate Judge submitted a Proposed Findings and Recommendation (PF&R) (Document 516) wherein it is recommended that this Court deny the Petitioner's § 2555 motion and dismiss this civil action. The Movant timely filed Objections to Finding & Recommendation (Document 520). The Court has also reviewed Crime Victims D.S. and R.S.'s Reply in Opposition to Movant's Motion to Amend His Petition in the Future and Motion to Assert Victim's Rights (Document 522).

         FACTUAL AND PROCEDURAL BACKGROUND

         The Magistrate Judge's PF&R sets forth the factual and procedural background of this case in detail. The Court hereby incorporates those factual findings, but to provide context for the ruling contained herein, provides the following summary.

         Following severed jury trials, Thomas Shrader was convicted of being a felon in possession of a firearm and of two counts of stalking by use of an interstate facility. The Court found that he had sustained three prior convictions for violent felonies, and he was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). The prior convictions at issue include two counts of first-degree murder, in violation of W.Va. Code § 61-2-1, and a conviction for unlawful wounding, in violation of W.Va. Code § 61-2-9(a).[1] Mr. Schrader was also convicted of escape in 1977.

         The ACCA established a mandatory minimum sentence of fifteen years, and Mr. Schrader's Sentencing Guideline range was increased from a level 28 to a level 33 as a result of his designation as a Career Offender. He was sentenced to 235 months of imprisonment, followed by a five-year term of supervised release. He unsuccessfully appealed, including an unsuccessful challenge to his armed career criminal designation. He also filed a previous motion pursuant to 28 U.S.C. § 2255, which the Court denied on January 25, 2016, and the Fourth Circuit denied a certificate of appealability and dismissed his appeal on September 7, 2016. (Document 449.)

         Following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), made retroactive by Welch v. United States, 136 S.Ct. 1257 (2016), Mr. Shrader was appointed counsel and received authorization from the Fourth Circuit to file a second or successive § 2255 claim. His prior crime victims filed an assertion of their right to participate in this matter and oppose any relief.

         STANDARD OF REVIEW

         This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de 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, this Court need not conduct a de novo review when a party “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).

         DISCUSSION

         In his PF&R, Judge Tinsley recommends finding that Mr. Shrader's two murder convictions and conviction for unlawful wounding constitute crimes of violence under current law because each requires the use of force. He further recommends finding that the unlawful wounding offense is properly classified as a felony offense and is therefore a proper predicate for the ACCA and a career offender enhancement.

         Mr. Shrader filed objections with the assistance of counsel. He contends that West Virginia's first-degree murder statute includes felony murder offenses that do not require the application of any force against the victim. Therefore, he argues, West Virginia's murder statute is broader than the generic definition and is not a permissible ACCA predicate offense. In addition, he contends that “he pled to, and was sentenced to, the maximum sentence of the lower level of unlawful wounding, or one year, ” and that “ACCA requires his sentence to be in excess of one year.” (Obj. at 4.)

         The ACCA provides for increased sentences for defendants convicted of certain firearms offenses after sustaining three or more convictions for serious drug offenses or violent felonies. A “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year…that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The Supreme Court found that the final “residual” clause, referencing crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another, ” is ...


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