Yarborough v. United States of America

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATION. The Report is incorporated herein by reference and the petitioner's objections are all overruled, and this action is dismissed without prejudice and without issuance and service of process upon the respondent. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 10/31/2011. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Jesse Yarborough, aka Jessie
Yarborough,
Petitioner,
vs.
United States of America,
Respondent.

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C/A No. 1:10-3192-JFA-SVH

ORDER

This matter was initially filed in the Southern District of Florida and transferred to
this court. The petitioner, Jessee Yarborough, has filed what is styled a “Petition for Writ
of Certiorari” which attacks his underlying criminal conviction in this District for using a
firearm during and in relation to a drug trafficking crime.
Pursuant to the standard procedures in this court, the matter was referred to the
United States Magistrate Judge.1 The Magistrate Judge has filed a detailed and
comprehensive Report and Recommendation (Report) suggesting that the action should
be dismissed. Petitioner was advised of his right to file objections to the Report and he
has done so in a two-page objection memorandum.

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of
those portions of the Report to which specific objection is made and the court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
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After carefully considering the Report and the petitioner’s objections thereto, the
court concludes that the Magistrate Judge’s recommended disposition is correct.
Accordingly, the court will dismiss this action.
Following petitioner’s guilty plea in December 2006, the Honorable G. Ross
Anderson, Jr., the United States District Judge to whom this matter was originally
assigned, sentenced the petitioner to 152 months. The conviction and sentence were
affirmed on appeal.
On May 6, 2008, this court dismissed the petitioner’s motion to vacate, set aside,
or correct his sentence filed pursuant to 28 U.S.C. § 2255.

The court also denied the

petitioner’s two motions for reconsideration of that order. The Fourth Circuit Court of
Appeals denied a certificate of appealability and dismissed petitioner’s appeal on August
4, 2009. Petitioner made one additional effort at taking an appeal to the Fourth Circuit,
but that court denied petitioner’s appeal for lack of jurisdiction because the notice of
appeal was not timely filed.
The Magistrate Judge indicates in the Report that the petition in this action could
be construed as either (1) a petition to vacate, correct, or set aside petitioner’s sentence
under § 2255; (2) a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241; or (3)
a petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651.
Analyzing this case under each of the above referenced statutes yields the
conclusion that the petition should be dismissed. To the extent the pleading can be
construed as a § 2255 motion, as noted above, the petitioner has already filed one
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unsuccessful § 2255 action in this court. That action was dismissed and the dismissal was
affirmed after several attempts at appeal by the petitioner. As noted by the Magistrate
Judge, the petitioner has not secured the permission to the United States Court of Appeals
for the Fourth Circuit to file a second or successive petition.
In his objection memorandum, petitioner points out that he has, at times, been
housed at the Special Housing Unit (SHU) at the Federal Correctional Institution at
Butner, North Carolina; that the library at Butner was out of service from October 2007
until June 2008; and that he has undergone several surgeries while incarcerated. These
objections all miss the mark.

They might relate to why the petitioner did not file

something in a timely fashion, but they in no way address the central facts upon which the
Magistrate Judge’s Report is based:

petitioner has already filed one § 2255 action and

the petition in this case is therefore successive.
To the extent the action can be considered one as a motion for habeas corpus under
§ 2241, the Magistrate Judge correctly points out that such actions must be filed in the
district where the petitioner is confined.
To the extent the claim can be asserted as one for a writ of error coram nobis under
§ 1651, the Magistrate Judge suggests that such a remedy is not available because the
petitioner remains incarcerated on the challenged sentence and has failed to establish that
§ 2255 is ineffective and inadequate to test the legality of his detention. The petitioner
has failed to object to the Magistrate Judge’s recommendation as to these last two claims.

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The court is thus left with the firm conviction that this action should be dismissed
as recommended by the Magistrate Judge.

The Report is incorporated herein by

reference, the petitioner’s objections are all overruled, and this action is dismissed
without prejudice and without issuance and service of process upon the respondent.
Because the defendant has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.

October 31, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable
and that any dispositive procedural rulings by the district court are also debatable or wrong. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).

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