Chen v. Warden Federal Correctional Institution Estill

Filing 15

ORDER Adopting 9 Report and Recommendation. It is ORDERED that the 1 habeas petition is DISMISSED without prejudice and without requiring the respondent to file an answer or return. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 3/12/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Howard Chen, #44851-112,
Petitioner,
vs.
Warden, Federal Correctional InstitutionEstill,
Respondent.

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Civil Action No. 8:14-285-TMC

ORDER

The petitioner is an inmate at FCI-Estill, in Estill, South Carolina, and is seeking habeas
corpus relief pursuant to 28 U.S.C. § 2241 to vacate one count of his federal conviction and for a
resentencing. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this
matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate
judge’s Report and Recommendation (“Report”), recommending that the court dismiss the
petition without prejudice and without requiring the respondent to file an answer or return. (ECF
No. 9). The petitioner timely objected to the Report. (ECF No. 12).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “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). In that
case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

The petitioner’s request falls properly under 28 U.S.C. § 2255, not § 2241. See Brown v.
Rivera, No. 9:08-cv-3177, 2009 WL 960212, at *2 (D.S.C. April 7, 2009) (stating that generally
a § 2241 petition “‘attacks the execution of a sentence rather than its validity,’ whereas a § 2255
motion ‘attacks the legality of detention’”) (citation omitted). The petitioner has already filed a §
2255 motion with the court that sentenced him, and that court has denied his motion. See United
States v. Chen, No. 2:07-cr-463-JFW-1 (C.D. Cal. Aug. 5, 2011). Thus, he is procedurally
barred from filing his current petition. However, in his objections, the petitioner contends that
the court should construe his petition as advancing a claim of actual innocence regarding one of
his § 924(c) convictions and find that it falls within the § 2255 savings clause, in light of the
United States Supreme Court’s recent holding in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
In McQuiggin v. Perkins, the Supreme Court held that “actual innocence, if proved,
serves as a gateway through which a petitioner may pass whether the impediment is a procedural
bar . . . or . . . expiration of the statute of limitations.” Id. at 1928. However, as the Court
explained in Schlup v. Delo, “a petitioner does not meet the threshold requirement [of pleading a
tenable actual innocence claim] unless he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” 513 U.S. 298, 329 (1995).
In this case, the petition does not set forth any new evidence that would suggest that the
petitioner is actually innocent of one of his two § 924(c) charges. The petitioner does not argue
that he did not meet the elements of the charged offense, but that the sentencing court did not
apply the law correctly in allowing two separate § 924(c) charges connected to one underlying
drug trafficking charge and sentencing him on both of those charges. The petitioner raised that
issue in his § 2255 motion to the sentencing court and the sentencing court has already addressed

and ruled on it. While the court appreciates the petitioner’s creative argument, even under the
most liberal interpretation, the petition does not assert a viable claim of actual innocence or
advance any other argument warranting application of the § 2255 savings clause.
Accordingly, the court adopts the Report (ECF No. 9) and incorporates it herein. It is
therefore ORDERED that the habeas petition is DISMISSED without prejudice and without
requiring the respondent to file an answer or return.
In addition, a certificate of appealability will not issue to a prisoner seeking habeas relief
absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the petitioner has failed
to make a substantial showing of the denial of a constitutional right. Accordingly, the court
declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
March 12, 2014
Anderson, South Carolina