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Collier v. Hudgins

United States District Court, N.D. West Virginia

October 29, 2019

HENRY WAYNE COLLIER, Petitioner,
v.
R. HUDGINS, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING PETITIONER'S OBJECTIONS AND DISMISSING CIVIL ACTION WITHOUT PREJUDICE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         The pro se[1] petitioner, Henry Wayne Collier, a federal inmate designated to FCI Gilmer in Glenville, West Virginia, filed a petition for habeas corpus under 28 U.S.C. § 2241. ECF No. 1. In the petition, the petitioner states that “per Dimaya[2] and Johnson, [3] the residual clause of career offender is constitutionally vague.” ECF No. 1 at 5; ECF No. 1-1 at 2. The petitioner next asserts that “the career offender's definition of a crime of violence does not apply to [his] bank robbery offense.” ECF No. 1 at 5. Specifically, the petitioner asserts that “federal bank robbery criminalizes conduct that does not require an intentional threat of physical force. Therefore, federal bank robbery fails to qualify as a crime of violence under Garcia, [4] and as such the petitioner's priors do not qualify as crime of violence [ ] under the career offender guideline.” ECF No. 1-1 at 3. Moreover, the petitioner states that “[u]tilizing the reasoning in Dimaya & Johnson, in all of the petitioner's prior bank robberies, there were not weapons utilized . . . only notes. No. one was harmed, physically or otherwise. No. one was restrained/tied up or gagged. Simply a note presented, and money given . . . then the petitioner quickly exited the bank.” Id. at 6. For relief, the petitioner requests that this Court “vacate the illegal career offender sentence and re-sentence without the career offender designation.” ECF No. 1 at 8.

         United States Magistrate Judge James P. Mazzone entered a report and recommendation (ECF No. 14) and the petitioner timely filed timely filed objections (ECF No. 16). In his objections, the petitioner states that “because the petitioner's brief passes the first three prongs of Wheeler, [5] this is the most glaring example that sec. 2255 is inadequate and ineffective to provide relief.” Id. at 2. The petitioner asserts that “the magistrate judge relies on, what amounts to a technicality to recommend denial of the petitioner in his quest for relief.” Id. The petitioner then alleges a violation of due process under the Fifth Amendment of the United States Constitution. Id. The petitioner states that judges treat the Advisory Guidelines for sentencing as mandatory guidelines, and that his sentence should be corrected. Id. at 3.

         For the reasons that follow, this Court finds that the report and recommendation of the magistrate judge should be affirmed and adopted in its entirety.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which an objection is timely made. Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which the petitioner objected.

         III. Discussion

         This Court has conducted a de novo review of all portions of the magistrate judge's report and recommendation. In this case, for substantially the reasons stated by the magistrate judge, this Court finds that this Court lacks subject matter jurisdiction. As the magistrate judge correctly stated, the petitioner was sentenced under the post-Booker, [6] advisory Sentencing Guidelines and therefore cannot satisfy the fourth prong under Wheeler, 886 F.3d at 429.[7] See ECF No. 14 at 8. The magistrate judge correctly found that the petitioner has not satisfied the 28 U.S.C. § 2255(e) savings clause and is not entitled to § 2241 relief. Id. Moreover, this Court finds that the petitioner's contention pertaining to how judges treat the Advisory Guidelines for sentencing as mandatory guidelines is without merit. Accordingly, this Court upholds the magistrate judge's recommendation and overrules the petitioner's objections.

         IV. Conclusion

         For the reasons discussed above, the report and recommendation of the magistrate judge (ECF No. 14) is hereby AFFIRMED and ADOPTED in its entirety and the petitioner's objections (ECF No. 16) are OVERRULED. The petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2241 (ECF No. 1) is DENIED and DISMISSED WITHOUT PREJUDICE.

         It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court.

         Should the petitioner choose to appeal the judgment of this Court to the United States Court of Appeals for the Fourth Circuit on the issues to which objection was made, he is ADVISED that he must file a notice of appeal with the Clerk ...


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