Adams v. Wilson

Filing 16

FINAL ORDER. The Court ADOPTS and APPROVES the Magistrate Judge's 15 Report and Recommendations filed on February 19, 2016 in its entirety as the Court's own opinion. It is therefore, ORDERED that the Petition be DISMISSED WITHOUT PREJU DICE. PETITIONER IS ADVISED that he must file a § 2255 petition in the district in which he was sentenced, delineating his prayer for relief pursuant to Johnson before June 26, 2016, or pursuant to Newbold before June 30, 2016. The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of record for the Respondent. Signed by District Judge Arenda L. Wright Allen on 4/25/2016. Copies mailed 4/26/2016. (Attachments: # 1 Successive Application) (jmey, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

)
JACKIE VICTOR ADAMS.
Petitioner.

CaseNo.:2:15-cv-235

v.

ERIC D. WILSON, Warden.

Respondent.

FINAL ORDER

Before the Court is a Petition for Writ o\' Habeas Corpus filed pursuant to 28 U.S.C. §

2241. ECF Nos. 1and 7.1 In his Petition, the pro se Petitioner alleged that he was sentenced
under a provision of the Armed Career Criminal Act ("ACCA") that is now unconstitutional

based on Johnson v. United States, 135 S.Ct. 2551 (June 26. 2015). On January 11. 2016. the
United States Attorney for the Eastern District of Virginia, on behalf of the Respondent, filed a
Motion to Dismiss for Lack of Jurisdiction.

ECF No. 9.

This case was referred to a United

States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Federal Rule of Civil

Procedure 72(b). and Local Civil Rule 72 for a report and recommendation. The Report and
Recommendation was filed on February 19. 2016. and the Magistrate Judge recommended the

Petition be dismissed without prejudice for lack of jurisdiction. ECF No. 15. By receiving a
copy of the Report and Recommendation, the parties were advised of their right to file written
1Adams filed his 28 U.S.C. § 2241 petition in the Eastern District of North Carolina on January 20, 2015. ECF No.
I. The case was transferred to the Eastern District of Virginia on June 3, 2015, because the proper venue for a §
2241 petition is the district in which the petitioner is in custody. See 28 U.S.C. § 2241(a). On June 26. 2015. the
Court ordered Adams to file an amended petition on the proper Form (AO 242( 12/11)). ECF No. 6. Adams filed an
amended petition on July 17. 2015. F.CF No. 7.

objections to the Magistrate Judge's findings and recommendations. Id. at 9. Neither parly filed
an objection.

The Court, having reviewed the record with no objections, agrees with the Report and
Recommendation on the grounds stated by the Magistrate Judge and ADOPTS and APPROVES
the Magistrate Judge's Report and Recommendation filed on February 19. 2016, ECF No. 15, in
its entirety as the Court's own opinion. It is. therefore, ORDERED that the Petition, ECF No. 7.

be DISMISSED WITHOUT PREJUDICE. Moreover, it appears the parlies dispute whether
Petitioner's sentence was originally enhanced based on prior "violent felonies" or "serious drug
offenses."

This Court has no information before it as to whether Adams" sentence was

definitively enhanced under § 924(e)(2)(B) or § 924(e)(2)(A). Therefore. Petitioner may have a
claim for relief under Johnson v. United States. 135 S.Ct. 2551 (June 26. 2015). which does

apply retroactively, see Welch v. United States. No. 15-6418.

U.S.

(April 18. 2016) (slip

op.) (holding that the Court's decision in Johnson was a new substantive rule of law that applies
retroactively in cases on collateral review), or under United Stales v. Newhold. 791 F.3d 455 (4th

Cir. June 30, 2015) (applying UnitedStales v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc),
to evaluate whether a prior conviction is a "serious drug offense" implicating an enhancement of
a defendant's sentence under the ACCA). Accordingly. PETITIONER IS ADVISED that he

must file a § 2255 petition in the district in which he was sentenced, delineating his prayer for
relief pursuant to Johnson before June 26, 2016. or pursuant to Newbold before June 30, 2016.

See 28 U.S.C. § 2255(0(3). Further, because this may be a successive habeas petition. Petitioner
must still also seek a certificate of appealability from the Fourth Circuit (attached).

The Petitioner may appeal from the judgment entered pursuant to this Final Order by

filing a written notice of appeal with the Clerk of the Court at the Walter E. Hoffman United

States Courthouse. 600 Oranby Street. Norfolk. Virginia 23510. within sixty days from the date
of entry ofjudgment. Because the Petitioner has failed to demonstrate "a substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2), pursuant to Federal Rule of
Appellate Procedure 22(b), this Court declines to issue a certificate of appealability. See MillerEl v. CockrelL 537 U.S. 322, 335-36 (2003).

The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of
record for the Respondent.
It is so ORDERED.

Arenda Wright Allen
United States District Judge
Norfolk. Virsinia

Date: x/-=?5"-/C*