Wardell v. Joyner

Filing 27

ORDER adopting Report and Recommendations re 13 Report and Recommendation; denying 25 Motion and affirming 11 Order. Signed by Honorable David C Norton on November 8, 2018.(kwhe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
WENDEL ROBERT WARDELL, JR.,
Petitioner,
v.
H. JOYNER, Warden,
Respondent.

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No. 0:18-cv-01566-DCN
ORDER

This matter is before the court on Magistrate Judge Paige J. Gossett’s Order
(“Order”) construing petitioner Wendel Robert Wardell, Jr.’s (“petitioner”) motion
requesting reassignment as a request to recuse and denying the motion, ECF No. 11, and
her Report and Recommendation (“R&R”) that recommends this court deny petitioner’s
writ of habeas corpus petition pursuant to 28 U.S.C. § 2241, ECF No. 13. For the reasons
set forth below, the court affirms the Order, adopts the R&R, and denies the petition.
I. BACKGROUND
Petitioner was convicted by a jury of 18 different charges, including conspiracy to
defraud the United States, making false statements in tax returns, and aiding and abetting
the preparation and presentation of false tax returns. ECF No. 1-1 at 2. At sentencing,
the court found that petitioner was responsible for an intended tax loss to the Internal
Revenue Service of $74, 916. Id. at 2. Petitioner explains that this amount was
calculated using, in part, two charges of which the jury acquitted petitioner that were
subsequently dismissed by the sentencing court. Id. at 2–3. Petitioner also states that the
sentencing court considered “uncharged conduct in arriving at [the Internal Revenue

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Service’s] intended tax loss.” Id. at 3. Petitioner was sentenced to 96 months’
imprisonment and one year of supervised release. Id.
The R&R recounts the procedural background of petitioner’s case. ECF No. 13 at
1–2. Petitioner’s only objection to this portion of the R&R is its conclusion that
petitioner attempted to file an unauthorized second § 2255 motion. ECF No. 25 at 5.
Petitioner claims that he filed a Rule 60(b) motion, and that the district court in that case
improperly construed it as a second § 2255 motion. Id. at 5–6.
Petitioner now seeks to have his sentence vacated pursuant to 28 U.S.C. § 2241.
Petitioner filed his habeas petition on June 7, 2018. Then petitioner filed a motion for
random re-assignment of his case on July 30, 2018, and the magistrate judge construed
the motion as a request to recuse and denied it on August 3, 2018. On the same day, the
magistrate judge issued her R&R recommending that petitioner’s habeas petition be
dismissed. The court granted petitioner’s request for an extension of time to file
objections to the R&R on August 28, 2018. Petitioner filed his objections as joint
objections with another petitioner, Don Mitchell Wilborn (“Wilborn”), 1 on September
13, 2018. No response has been filed.
II. STANDARDS OF REVIEW
A. Review of Magistrate’s Order
Magistrate judges have “the authority to hear and determine any pretrial matter
pending before the court” except for dispositive motions. United States v. Benton, 523
F.3d 424, 430 (4th Cir. 2008). A party may object to a magistrate judge’s order on a
nondispositive matter within 14 days of service of the order. Fed. R. Civ. Pro. 72(a).

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Wilborn’s case, 18-cv-1565, is also before this court.
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The district court reviews such orders for clear error. 28 U.S.C. § 636(b)(1)(A); Springs
v. Ally Fin. Inc., 657 F. App’x 148, 152 (4th Cir. 2016).
B. R&R
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not carry presumptive
weight, and it is the responsibility of this court to make a final determination. Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). A party’s failure to object may be treated as
agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S.
140, 150 (1985).
C. Pro Se Plaintiff
Petitioner is proceeding pro se in this case. Federal district courts are charged
with liberally construing complaints filed by pro se litigants to allow the development of
a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). Pro se
complaints are therefore held to a less stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean that the court can ignore a clear failure
in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t of
Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
III. DISCUSSION
Petitioner raises several objections to the Order and the R&R. With regard to the
Order, petitioner objects to the magistrate judge’s construction of his motion for random
reassignment as a request to recuse. He alleges that the magistrate judge “mishandle[ed] .

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. . the motion for reassignment in direct violation of the local rules and/or Federal Rules
of Civil Procedure.” ECF No. 25 at 2. With regard to the R&R, petitioner first objects to
the magistrate judge’s failure to provide copies of the unpublished cases cited in her
R&R. Id. Next petitioner objects to the R&R’s conclusion that his petition should be
summarily dismissed based on its analysis of Nelson v. Colorado, 137 S. Ct. 1249 (2017).
Id. at 9.
A. Order on Motion for Reassignment
Petitioner first argues that the magistrate judge erred in construing his motion for
random reassignment as a request to recuse. Relevant to his argument is the fact that the
magistrate judge denied petitioner’s previous habeas petition in 2016. ECF No. 25 at 4;
Wardell v. Mansukhani, 16-cv-1135. Here, petitioner claims that the Order ignored
Local Civ. Rule 73.02(C)(1)(f) and (g) (D.S.C.), which require that federal prisoner cases
challenging confinement be assigned to magistrate judges on a rotational basis, and
related cases be assigned to the same magistrate judge. ECF No. 25 at 2–3. Petitioner
then asserts that to “contrary to [the rules] above,” Local Civ. Rule 73.02(C)(6) (D.S.C.)
requires new cases filed by pro se litigants with prior cases to be assigned to the same
magistrate judge and district judge who heard their prior cases. Id. at 3. Petitioner
appears to be arguing that his case should have been assigned on a rotational basis to a
different magistrate judge per Rule 73.02(C)(1)(f), instead of to the same magistrate
judge who heard his prior case per Rule 73.02(C)(6). Moreover, petitioner claims that
once his motion was construed as a motion to recuse, a district judge should have heard
the motion. Id. at 4. Finally, petitioner claims that the magistrate judge “knowingly, and
intentionally, ignored her legal responsibilities to avoid an appearance of bias.” Id.

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The magistrate judge construed petitioner’s motion as a request for recusal and
found no basis for recusal. She explained that petitioner’s disagreement with her prior
rulings and “unsupported allegations of bias” were not sufficient to warrant recusal. ECF
No. 11 at 3.
Under the clear error standard, a district court “may not reverse [a magistrate
judge’s order] simply because it would have decided the case differently. Rather, a
reviewing court must ask whether . . . it is left with the definite and firm conviction that a
mistake has been committed.” DietGoal Innovations LLC v. Wegmans Food Markets,
Inc., 993 F. Supp. 2d 594, 600 (E.D. Va. 2013) (quoting United States v. Wooden, 693
F.3d 440, 451 (4th Cir. 2012)). Petitioner’s motion asserts that the magistrate judge
ha[s], previously, been unwilling, as a matter of conscience, to apply the
applicable Rules of Civil Procedure to proceedings which displays a clear
inability to render fair judgment. Moreover, as evidenced by the current
appeal, the assigned . . . Magistrate Judge ha[s] been unwilling to follow the
applicable law and Rules of Civil Procedure.
ECF No. 10 at 2–3. It was not clearly erroneous for the magistrate judge to interpret this
language as a request for recusal. After a thorough review of the record and the Order,
the court finds no clear error and therefore affirms the Order.
B. Failure to Provide Copies of Cases
Next, petitioner objects to the fact that the magistrate judge relied up on and cited
unpublished cases in her R&R but did not provide copies to petitioner. Petitioner relies
on Local Civ. Rule 7.05 (D.S.C.), which requires parties to attach copies of unpublished
decisions to memoranda filed with the court. However, this rule applies to parties before
the court, not the court itself. Rule 7.05 is found in the section titled “Pleadings Allowed:
Forms of Motions.” Local Civ. Rule 7.04 (D.S.C.) explains that “[a]ll motions made . . .
shall be timely filed with an accompanying supporting memorandum that shall be filed
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and made part of the public record.” Rule 7.05, titled “Form and Content of
Memoranda,” subsequently contains the requirement that parties attach unpublished
decisions to their memoranda. Read in context, this rule applies to parties filing
pleadings, not to the court issuing orders. Therefore, the court finds that the magistrate
judge was not required to attach the unpublished cases on which she relied.
C. Dismissal of Petition
Petitioner also objects to the R&R’s ultimate conclusion that his petition should
be dismissed, arguing that the magistrate judge erred in finding that Nelson does not
provide relief for petitioner. Petitioner claims that his “sentence[] [was] improperly
enhanced based on acquitted, dismissed, and/or uncharged conduct.” ECF No. 25 at 6.
He argues that the Supreme Court’s reasoning in Nelson, a case related to acquitted
conduct, extends to his sentence, meaning he “cannot be held criminally liable for the
uncharged . . . fraud” that was considered in his sentencing. Id. at 10. The magistrate
judge concluded that Nelson did not affect petitioner’s sentence, as required by the
second requirement of § 2255 savings clause, and as such, petitioner’s case should be
dismissed. ECF No. 13 at 3–4.
“[I]t is well established that defendants convicted in federal court are obliged to
seek habeas relief from their convictions and sentences through [28 U.S.C.] § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). When a federal prisoner is barred
from seeking habeas relief through § 2255, he may still seek a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 through § 2255’s saving clause, which is available when a §
2255 motion “proves inadequate or ineffective to test the legality of . . . detention.” In re

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Jones, 226 F.3d 328, 333 (4th Cir. 2000). In order to show that § 2255 is inadequate or
ineffective to test the legality of detention, a petition must show:
(1) at the time of sentencing, settled law of this circuit or the Supreme Court
established the legality of the sentence; (2) subsequent to the prisoner's
direct appeal and first § 2255 motion, the aforementioned settled
substantive law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the gatekeeping
provisions of § 2255(h)(2) for second or successive motions; and (4) due to
this retroactive change, the sentence now presents an error sufficiently
grave to be deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
In Nelson, the Supreme Court held that when a defendant’s criminal conviction is
subsequently invalidated, the state may not require the defendant to prove her innocence
in order to receive a refund of fees, court costs, and restitution paid as a consequence of
the conviction. 137 S. Ct. at 1252. The petitioners in Nelson were convicted of various
charges in Colorado and paid fees, court costs, and restitution as a result of their
convictions. Id. at 1252–53. One petitioner was subsequently acquitted of all charges on
retrial, and the other’s convictions were either reversed or vacated. Id. at 1253. A
Colorado law required a petitioner to “show, by clear and convincing evidence, her actual
innocence of the offense of conviction” to be refunded any money paid as a result of the
invalid conviction. Id. at 1254. The petitioners challenged this law, and the Supreme
Court subsequently found that the law “does not comport with due process.” Id. at 1255.
Of relevance here, the Court explained that once the petitioners’ convictions were
invalidated, “the presumption of their innocence was restored.” Id. As such, Colorado
could not presume a person innocent of a crime and then find her “guilty enough for
monetary exactions.” 137 S. Ct. at 1256. (emphasis added).

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Petitioner takes this language from Nelson and applies it to sentence
enhancements to argue that “‘once . . . the presumption of . . . innocence [i]s restored,’ a
state ‘may not presume a person, adjudged guilty of no crime, nonetheless guilty enough
for [enhancements to apply].’” ECF No. 25 at 11 (emphasis added) (quoting Nelson, 137
S. Ct. at 1256). Applying Nelson’s reasoning, petitioner asserts that evidence of
acquitted and uncharged conduct cannot be used to calculate his sentence because
petitioner is presumed innocent of that conduct. Id. Considering acquitted and
uncharged conduct when calculating his sentence, petitioner argues, “eviscerates the
presumption of innocence.” Id.
Petitioner’s argument fails because he cannot properly analogize monetary
penalties with sentence enhancements. Monetary penalties are punishment, while the
Supreme Court has held that sentence enhancements are not. Witte v. United States, 515
U.S. 389, 400–01 (1995). Therefore, petitioner cannot equate monetary penalties and
sentence enhancements, and Nelson does not extend as far as petitioner contends it does.
Petitioner points to United States v. Brooks, 872 F.3d 78 (2nd Cir. 2017), as a case that
extends Nelson’s reasoning. ECF No. 25 at 9. However, while the reasoning is extended
to a factually different situation, it still applies in the context of monetary penalties, not
sentencing enhancements. In Brooks, the Second Circuit held that when a defendant dies
during his appeal, “the reasoning of Nelson [] compels abating monetary penalties”
because “there is no longer a valid conviction to support the government’s retention of
the penalty.” 872 F.3d at 89 (citation omitted). The Second Circuit does not go so far to
extend the reasoning of Nelson beyond monetary penalties.

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Petitioner also argues that Nelson “effectively overrules United States v. Watts,
519 U.S. 148 (1997).” ECF No. 25 at 9. In Watts, the Supreme Court held that a
sentencing court may consider “conduct underlying [an] acquitted charge, so long as that
conduct has been proved by a preponderance of the evidence.” 519 U.S. at 157. As
discussed above, sentencing is a separate and distinct concept from monetary penalties,
and as such, the same principles that apply to one cannot apply to the other. Therefore,
Nelson did not affect the holding in Watts.
Moreover, nowhere in Nelson does the Supreme Court discuss or even mention
Watts. The court cannot find that the Supreme Court overruled itself when it did not
explicitly do so. See United States v. Hatter, 532 U.S. 557, 567 (2001) (“[I]t is [the
Supreme Court]’s prerogative alone to overrule one of its precedents.”). Moreover, many
lower courts agree that Nelson does not overrule Watts. See United States v. Tegeler,
309 F. Supp. 3d 728, 732 (D. Neb. 2018) (“Because Nelson obviously does not expressly
invalidate Watts, this Court must follow Watts until the Supreme Court says otherwise.”);
Minor v. Coakley, 2018 U.S. Dist. LEXIS 173492, at *7 (N.D.W. Va. Oct. 9, 2018)
(“The magistrate judge is correct that the petitioner misinterprets the opinion[,] and his
assertion that Nelson overrules United States v. Watts, 519 U.S. 148 (1997), is
misplaced.”); Lewis v. Mosely, 2018 U.S. Dist. LEXIS 89955, at *8 (D.S.C. May 9,
2018), adopted and incorporated by 2018 U.S. Dist. LEXIS 89021 (D.S.C. May 29, 2018)
(“There is no indication upon review of cases giving negative treatment to U.S. v. Watts
that any case has overruled U.S. v. Watts, much less Nelson. Additionally, Nelson makes
no reference to Watts whatsoever.”). Therefore, the court adopts the R&R’s analysis and

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finds that Nelson does not affect petitioner’s sentence. As such, petitioner cannot meet
the second requirement of § 2255’s savings clause, and his petition must be dismissed. 2
IV. CONCLUSION
For the foregoing reasons, the court AFFIRMS the Order and ADOPTS the
R&R. The court therefore DISMISSES the petition, consistent with the R&R.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
November 8, 2018
Charleston, South Carolina

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Petitioner also makes a one-sentence argument that he is “‘actually innocent,’
thus allowing [him] to proceed under the ‘savings clause.’” ECF No. 25 at 21. However,
whether petitioner is “actually innocent” makes no impact on the court’s analysis or
holding. A claim of actual innocence is only relevant to the statute limitations under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). McQuiggin v.
Perkins, 569 U.S. 383, 392–93 (2013). McQuiggin held that actual innocence may
overcome the one-year statute of limitations on habeas petitions, allowing a petitioner
who is actually innocent to file a habeas petition after the statute of limitations expired.
Id. at 386. But a § 2241 habeas petition, like the one considered here, is not subject to the
AEDPA’s one-year statute of limitation. See Morales v. Bezy, 499 F.3d 668, 672 (7th
Cir. 2017) (“[T]here is no statute of limitations applicable to a federal prisoner’s filing a
section 2241 petition.”). As such, there is no issue as to whether a statute of limitations
bars petitioner’s petition, meaning whether the petitioner is “actually innocent” is
irrelevant.
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