Shipp v. Chapa et al

Filing 21

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition should be dismissed. Signed by Judge Marcia A. Crone on 2/14/17. (mrp, )

UNITED STATES DISTRICT COURT

VAUDA VIRGLE SHIPP, JR.,
Petitioner,
versus
RACHEL CHAPA,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-71

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Vauda Virgle Shipp, Jr., an inmate confined at the Federal Correctional
Complex in Beaumont, Texas, proceeding pro se, brought this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends that the above-styled petition should be dismissed.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
Petitioner objects to the Report asserting his enhancement under the Armed Career Criminal
Act is illegal. In support of his objections, petitioner cites the recent Supreme Court decision in
Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Petitioner argues
that since he does not fit the criteria for the sentencing enhancement he must be resentenced.

After careful consideration, the Court concludes petitioner’s objections should be overruled.
Petitioner complains of the sentencing court’s application of a sentencing enhancement under the
Armed Career Criminal Act. However, as the Magistrate Judge observed, a claim of actual
innocence of a sentencing enhancement is not a claim of actual innocence of the crime of conviction.
See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011) (claim of actual innocence of a career offender
enhancement is not a claim of actual innocence of the crime of conviction to warrant habeas review
under § 2241); Dority v. Roy, 402 F. App’x 2 (5th Cir. Nov. 8, 2010) (claim of actual innocence
of Armed Career Criminal Act enhancement is not sufficient to satisfy savings clause); Hartfield v.
Joslin, 235 F. App’x 357, 358 (5th Cir. 2007) (claim of actual innocence of career offender
enhancement is not sufficient to satisfy savings clause). Accordingly, petitioner’s petition does not
meet the criteria required to support a claim under the savings clause of 28 U.S.C. § 2255. See
Padilla v. United States, 416 F.3d 424 (5th Cir. 2005); Reyes-Requena v. United States, 243 F.3d.
893 (5th Cir. 2001).
Petitioner was convicted in the United States District Court for the District of Oklahoma.
See United States v. Shipp, 233 F. App’x 847 (10th Cir. 2007). While petitioner may have an
available avenue to present his claim as a motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255 in the court of conviction, he is not entitled to relief under § 2241. Thus, this petition
should be dismissed.
ORDER
Accordingly, petitioner’s objections are OVERRULED.

The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is

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ADOPTED. A final judgment will be entered in this case in accordance with the magistrate

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judge’s recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 14th day of February, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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