United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGEK UNITED STATES DISTRICT JUDGE.
November 6, 2015, the Petitioner filed a motion under 28
U.S.C. § 2255 to vacate, set aside or correct sentence
(Document 37). By Standing Order (Document 38)
entered on November 9, 2015, the matter 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. §
September 6, 2018, the Magistrate Judge submitted a
Proposed Findings and Recommendation (PF&R)
(Document 54) wherein it is recommended that this Court deny
the Petitioner's § 2555 motion and dismiss this
matter from the docket. As the result of deadline extensions,
objections to the Magistrate Judge's Proposed
Findings and Recommendation were due by January 21,
2019. Neither party filed timely objections, and on January
24, 2019, the Court entered a Memorandum Opinion and
Order (Document 61) adopting the PF&R along with a
Judgment Order (Document 63) dismissing the motion.
February 25, 2019, the Petitioner filed a Motion for
Fourth Extension of Time to File Objection to Magistrate
Report and Recommendation (Document 66). He asserted
that he was unable to file timely objections because of
transfers and delayed access to his property, including
materials related to this case. On July 23, 2019, the Court
entered an order permitting the Petitioner to submit
objections for the Court's consideration. On August 8,
2019, the Petitioner submitted documents entitled
Memorandum of Law in Support of the Motion for Writ of
Habeas Corpus (Document 68) and Additional Facts in
Support of Objection (Document 69), hereinafter referred
to collectively as objections.
Court finds that the Petitioner set forth good cause for
permitting objections to be filed out of time, and the
previous opinion and judgment order will be vacated. However,
following careful consideration, the Court finds that the
objections should be overruled, and the PF&R adopted.
Petitioner, Steven Benko, pled guilty to distribution of a
quantity of oxycodone in violation of 21 U.S.C. §
841(a)(1) on September 10, 2014. The Court imposed a sentence
of 84 months of incarceration on January 14, 2015. Mr.
Benko's sentencing guideline range was 151 to 188 months
as a result of application of the career offender enhancement
contained in Section 4B1.1 of the United States Sentencing
Guidelines. Absent that enhancement, his Guideline range
would have been 24-30 months. The prior convictions that
constituted predicates for application of the career offender
enhancement were an April 29, 2005 Florida conviction for
Aggravated Assault of a Law Enforcement Officer, and a July
7, 2010 Florida conviction for Possession of Oxycodone with
Intent to Distribute.
Benko did not appeal his sentence or conviction. He filed
this motion pursuant to Section 2255 on November 6, 2015.
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). When reviewing portions of the
PF&R de novo, the Court will consider the fact that
Petitioner is acting pro se, and his pleadings will
be accorded liberal construction. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d
1291, 1295 (4th Cir. 1978).
Magistrate Judge explained that the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2552
(2015) does not extend to challenges to the application of
the career offender sentencing enhancement. Mr. Benko argues
that he is entitled to relief because his conviction for
aggravated assault does not constitute a crime of violence
under current law. Therefore, he contends that he should not
be subject to the career offender enhancement.
Johnson, the Supreme Court ruled that the residual
clause of the Armed Career Criminal Act, defining violent
felonies to include a crime that “otherwise involves
conduct that presents a serious potential risk of physical
injury to another, ” is unconstitutionally vague.
Johnson v. United States, 135 S.Ct. 2551, 2555-57
(2015). The Supreme Court subsequently held that
Johnson's reasoning was not applicable to
challenges to the similar definition of a crime of violence
contained in the advisory sentencing guidelines, given that
the Guidelines “merely guide the district courts'
discretion.” Beckles v. United States, 137
S.Ct. 886, 894 (2017).
Johnson does not provide an avenue for relief for
challenges to application of the career offender guideline,
it is unnecessary to determine whether Mr. Benko's
Florida aggravated assault conviction constitutes a crime of
violence without reliance on the residual clause. ...