United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge.
Standing Order, this action was referred to United States
Magistrate Judge Cheryl A. Eifert for submission of findings
and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted
to the court her Findings and Recommendation on June 11,
2019, in which she recommended that the district court deny
plaintiff’s petition for a writ of habeas corpus, grant
defendant’s motion to dismiss, dismiss this action with
prejudice, and remove this matter from the court’s
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
Eifert’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.
25, 2019, Smith filed a motion to extend his deadline for
filing objections. That motion was granted and he was given
until August 15, 2019 to file objections. Smith filed his
objections on August 12, 2019. Therefore, his request for a
second extension of time to file objections (ECF No. 30) is
DENIED as moot. With respect to
Smith’s objections, the court has conducted a de novo
preliminary matter, in his objections, Smith contends:
Now comes the respondent nine months later, past due, and
files proposed objections and findings, that due to the lack
of meeting the time allotted to do so should be time-barred
and considered frivolous and hold no merit or consideration
in this case. If this honorable and respectful court upholds
the motions from the respondent of his objections and
findings and recommendations, it should show great
favoritism, bias and would be reflecting a violation for the
petitioners [sic] due process rights, and would be
“perpetuating incorrect procedure and law” of
this circuit and show prejudice toward the petitioner.
Moreover, I request the respondents’ objectives,
findings and recommendations not be considered and ignored in
ECF No. 31 at p.3. As noted above, the PF&R was entered
by Magistrate Judge Eifert, not defendant. Therefore, any
objection suggesting that the court should not consider it is
without merit and, therefore, OVERRULED.
February 26, 2009, in the United States Court for the
Northern District of Texas, Smith pled guilty to being a
convicted felon in possession of a firearm with the armed
career criminal enhancement, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). In doing so, Smith
acknowledged that he had three prior Texas drug convictions
that would subject him to the enhanced penalty provisions
contained in § 924(e). On June 12, 2009, Smith was
sentenced to a term of imprisonment of 235 months and a
five-year term of supervised release.
action, Smith claims that his prior Texas drug convictions no
longer qualify as predicate offenses under the ACCA and,
therefore, his sentence for being a felon in possession of a
firearm should not have been enhanced under the ACCA.
Smith’s prior convictions were pursuant to Texas Health
and Safety Code Section 481.112(a) which makes it a crime to
“knowingly manufacture[ ], deliver[ ], or possess[ ]
with intent to deliver a controlled substance. The word
“deliver” is further defined by § 481.002(8)
to include “offering to sell a controlled
substance.” Tex. Health & Safety Code §
primarily relies on a couple of Fifth Circuit cases in
advancing his argument, both of which were thoughtfully
discussed by Magistrate Judge Eifert in the PF&R. In
Hinkle v. United States, 832 F.3d 569, 576-77 (5th
Cir. 2016), a case decided on direct appeal, the United
States Court of Appeals for the Fifth Circuit held that a
conviction pursuant to § 481.112(a) of the Texas Health
and Safety Code does not qualify as a “controlled
substance offense” for the purpose of the career
offender enhancement found at § 4B1.1 of the United
States Sentencing Guidelines. In United States v.
Tanksley, 848 F.3d 347, 349 (5th Cir. 2017), the court
considered whether an earlier case, United States v.
Ford, 509 F.3d 714 (5th Cir. 2007), was still good
In Ford, the court held that a conviction under
§ 481.112(a) of the Texas Health and Safety Code
qualified as a “controlled substance offense”
under the United States Sentencing Guidelines. See
Tanskley, 848 F.3d at 349. In light of the Supreme
Court’s decision in Mathis, the
Tanksley court held that “Ford cannot
stand.” Id. at 352.
on Mathis, Hinkle, and Tanksley,
Smith contends that his predicate convictions under §
481.112(a) are not serious drug offenses for purposes of the
ACCA. However, as Magistrate Judge Eifert pointed out, the
Fifth Circuit has already decided this issue–
“that a conviction under the Texas Health and Safety
Code § 481.112(a) cannot be considered a `serious drug
offense’ under the ACCA because a defendant may be
convicted for merely offering to sell controlled
substances-and rejected it” PF&R at p. 18 (ECF No.
25); see also United States v. Vickers, 540 F.3d
356, 366 (5th Cir. 2008) (“The offenses specified by
the Texas statute-from the offer to sell, to attempted
delivery-are all offenses which are `related to or connected
with’ the distribution of drugs. . . . Therefore, we
hold that the district court did not err in concluding that
Vickers’s Texas conviction for delivery of a controlled
substance was a “serious drug offense” for
purposes of the ACCA.”). The Vickers court
recognized that its “holding means that an offense
could be found to satisfy the ACCA requirements, while the
same offense would not be sufficient to trigger an
enhancement under the Sentencing Guidelines.”
as Magistrate Judge Eifert also pointed out, even after
Hinkle and Tanksley, the holding in
Vickers still stands. See United States v.
Cain, 877 F.3d 562, 562 (5th Cir. 2017) (“A
conviction under Section 481.112(a) qualifies for the ACCA
enhancement under § 924(e).”). The Fifth Circuit
has, on multiple occasions, found the argument Smith makes
herein foreclosed by Vickers. See, e.g.,
United States v. Yarbrough, No. 18-11138, 770 F.
App’x 214, 214 (5th Cir. May 15, 2019); United
States v. Mitchell, No. 18-10948, 765 F. App’x 103
(5th Cir. Apr. 22, 2019); United States v. Prentice,
No. 17-10113, 721 F. App’x 393, 393 (5th Cir. May 9,
2018); United States v. Thomas, No. 16-11734, 698 F.
App’x 790, 791 (5th Cir. Oct. 16, 2017), cert.
denied, 138 S.Ct. 1310 (2018). Indeed, just this month,
the Fifth Circuit rejected a defendant’s argument that
“his three Texas convictions for delivery of a
controlled substance are not serious drug offenses for
purposes of the Armed Career Criminal Act enhancement, 18
U.S.C. § 924(e).” United States v.
Alexander, No. 18-11239, 2019 WL 4267356, *1 (5th Cir.
Sept. 9, 2019 (holding that defendant’s argument was
foreclosed by Cain and Vickers).
the foregoing, in his objections, Smith continues to argue
that Hinkle, Tanksley, and Mathis
entitle him to relief. He does so without specifically
addressing Vickers or Cain or meaningfully
discussing the differences between “serious drug
offense” under the ACCA and “controlled substance
offense” under the career offender provision of the
Guidelines. Rather than grapple with those issues, he points
the court to several additional cases which, according to
him, advance his argument. Unfortunately for Smith, nothing
in those cases undermines any of the conclusions in the
example, Smith spends a good portion of his filing discussing
a recent case from the United States Court of Appeals for the
Seventh Circuit, Beason v. Marske, 926 F.3d 932 (7th
Cir. 2019). In that case, the court held that Beason was
entitled to seek federal habeas relief under § 2241
because he was foreclosed from arguing that his prior
Wisconsin drug convictions did not count as ...