United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
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. 7]. 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 September 23, 2019, wherein he
recommends that petitioner's Petition for Habeas Corpus
Pursuant to 28 U.S.C. § 2241 [Doc. 1] be denied and
dismissed without prejudice for lack of jurisdiction.
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 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, failure to file timely objections constitutes a
waiver of de 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). Petitioner timely filed her
Objections on October 11, 2019 [Doc. 9]. 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
does not object to Magistrate Judge Mazzone's recitation
of the factual and procedural background. In sum, petitioner
is challenging the validity of her conviction in the United
States District Court for the District of Arizona and alleges
that the “act for which [she] was convicted is no
longer a crime” [Doc. 1 at 5]. In support of her claim,
petitioner relies on Lee v. United States, 137 S.Ct.
1958 (2017), a case in which the Supreme Court of the United
States found that the petitioner had demonstrated that he was
prejudiced by his counsel's erroneous assurance that he
would not be deported as a result of pleading guilty.
Petitioner maintains that Lee is “a
substantive non-constitutional [S]upreme [C]ourt
interpretation that is retroactively applicable” to her
case. [Id.]. Petitioner further alleges that like in
Lee, she did not have a plea agreement that speaks
to immigration consequences, nor was she advised of those
consequences at the Rule 11 hearing. For relief, petitioner
is requesting an evidentiary hearing to allow her to
demonstrate that the Lee case is applicable to her
on collateral review.
Judge Mazzone concluded that “[b]ecause the Petitioner
cannot satisfy the savings clause of § 2255(e) under
either Jones [In re Jones, 226 F.3d 328
(4th Cir. 2000)] or Wheeler [United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018)], her claim may
not be considered under § 2241, and this Court is
without jurisdiction to consider her petition” [Doc. 7
at 11]. In reaching this conclusion, Magistrate Judge Mazzone
found the following:
Although Petitioner has raised the savings clause, she is not
entitled to its application. Even if she satisfied the first
and third elements of Jones, the crimes for which
she was convicted remain criminal offenses, and therefore,
she cannot satisfy the second element of Jones.
Moreover, even if the Court were to entertain her petition,
which, in effect, argues ineffective assistance of counsel,
it is clear she would not be entitled to relief. Despite her
assertion to the contrary, she was specifically advised at
her Rule 11 hearing that she would face deportation
proceedings as the result of her conviction, and she
acknowledged that fact. Therefore, she cannot satisfy the
requirements of Strickland v. Washington, 466 U.S.
[Doc. 7 at 9]. Magistrate Judge Mazzone also addressed
petitioner's apparent challenge to her sentence as a
violation of her plea agreement (although such challenge was
not raised in her petition but rather in an attached memo),
where petitioner argued the plea agreement was violated
because she was assigned a higher base offense level at
sentencing than what was called for in the plea agreement.
Magistrate Judge Mazzone found that such challenge could not
satisfy either the second, third, or fourth prong of
Wheeler. See [Id. at 9-10].
Finally, Magistrate Judge Mazzone found that “[b]ecause
the Petitioner was sentenced under the post-Booker,
advisory Guidelines, regardless of whether this was a
misapplication of those guidelines, the law in this Circuit
makes clear that [petitioner] cannot satisfy the fourth
Wheeler prong, and, therefore, fails to satisfy the
§ 2255(e) savings clause” [Id. at 10-11].
Objections, petitioner does not address any of Magistrate
Judge Mazzone's findings with regard to her apparent
challenge to her sentence as a violation of her plea
agreement. Instead, petitioner merely reiterates her argument
that her claim is the same as the petitioner in Lee,
in that “there is no evidence that deportation was
discussed with her, there is no evidence in the plea
agreement that she was aware of the deportation consequences
and there is no evidence that she was advised of those
consequences at the Rule 11 hearing” [Doc. 9 at 1].
Petitioner also disagrees with Magistrate Judge Mazzone's
finding that her claim may not be considered under §
2241 because she cannot satisfy the savings clause of §
2255(e) under either Jones or Wheeler, but
petitioner gives no substantive argument in this regard.
Petitioner merely lists the Jones elements, and then
states that her “case meets these requirements and is
appropriately brought through the 2255 savings clause in a
2241 petition, ” [id. at 2], without any further
consideration, petitioner's Objections [Doc. 9] are
OVERRULED. As Magistrate Judge Mazzone correctly noted, the
crimes for which petitioner was convicted-Conspiracy to
Possess 1, 000 Kilograms of More of Marijuana with Intent to
Distribute (21 U.S.C. § 846) and Conspiracy to Launder
Monetary Instruments (18 U.S.C. § 1956(h))-remain
criminal offenses, and therefore petitioner cannot satisfy
the second element of Jones. Furthermore, as
Magistrate Judge Mazzone also correctly found, petitioner
would not be entitled to relief even if the Court were to
entertain her petition.
petitioner continues to draw comparisons to the petitioner in
Lee, the two are in fact very different. In
Lee, the petitioner “repeatedly asked [his
attorney] whether he would face deportation as a result of
the criminal proceedings, ” to which his attorney
“assured him there was nothing to worry about-the
Government would not deport him if he pleaded guilty, ”
and the petitioner accepted the plea “[b]ased on
that assurance.” Lee, 137 S.Ct. at
1962-63 (emphasis added). Furthermore, during the plea
colloquy, “[w]hen the judge warned him that a
conviction ‘could result in your being deported,'
and asked ‘does that at all affect your decision about
whether you want to plead guilty or not,' Lee answered
‘Yes, Your Honor.'” Id. at 1968.
“Only when Lee's counsel assured him that the
judge's statement was a ‘standard warning' was
Lee willing to proceed to plead guilty.” Id.
petitioner does not allege the same sort of blatantly
erroneous behavior by her attorney. Instead, petitioner
merely argues that she “does not have a plea agreement
that speaks to immigration consequences, nor was she advised
of those consequences that the Rule 11 hearing” [Doc.
1-1 at 5]. Petitioner makes no claim that her attorney
positively assured her that she would not be deported as a
result of pleading guilty. Furthermore, despite
petitioner's assertions to the contrary, petitioner was
specifically advised at her Rule 11 hearing that she would
face deportation proceedings as a result of her conviction.
When petitioner's counsel advised the court that
petitioner was not a United States citizen, the following
exchange took place:
THE COURT: In addition to the penalties I have already
mentioned, Ms. Bowen, do you understand that you will likely
suffer an adverse immigration consequence as a result of your
conviction for these crimes? Specifically, upon your
release from prison, you will be turned over to Immigration
and Customs Enforcement for deportation proceedings.
SANDRA MARIE BOWEN: Yes, Your Honor.
[D. Ariz. Criminal Action No. 2:09-CR-679, Doc. 353 at 20]
(emphasis added). Accordingly, this Court finds
petitioner's reliance on Lee to be unpersuasive.
Thus, even if petitioner could satisfy the savings clause of
§ 2255(e) under ...