Grubb v. Wilson

Filing 10

ORDER. The Court ADOPTS and APPROVES the Magistrate Judge's Report and Recommendation filed on March 9, 2016 in its entirety as the Court's own opinion. It is therefore, ORDERED that the Petition be DISMISSED WITHOUT PREJUDICE and PETITIONE R IS ADVISED that his claim for relief under Johnson v. United States, 135 S.Ct. 2551 (2015) 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), and that Petitioner therefore must file a § 2255 petition in the district in which he was sentenced, delineating his prayer for relief pursuant to Johns on before the one year statute of limitations expires on June 26, 2016 adopting Report and Recommendations re 9 Report and Recommendations. The Clerk is DIRECTED to forward a copy of this Order and the Application for Second or Successive Relief to the Petitioner and counsel of record for the Respondent. Signed by Chief District Judge Rebecca Beach Smith on 4/22/2016. Copies mailed 4/25/2016. (jmey, )

UNITED
FOR THE

STATES

DISTRICT

COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ROBERT WAYNE GRUBB,

Petitioner,
Case No.:

v.

ERIC D.

WILSON,

2:15-cv-355

Warden,

Respondent.

FINAL ORDER

Before
filed

the Court

pursuant

Petition,

to

28

is a Petition for
U.S.C.

in Johnson v.

2015).

2241.

ECF

No.

1.

In

his

the pro se Petitioner seeks resentencing without ACCA

(Armed Career Criminal Act)
ruling

§

Writ of Habeas Corpus

enhancement pursuant to the recent

United States,

135

S.Ct.

2551

(June 26,

On January 20, 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.

8.

This

case was referred to a United States Magistrate Judge pursuant
to

28

U.S.C.

Procedure

72(b),

recommendation.

March 9,

§

636(b)(1)(B)

and

and Local

Civil

The

Report

and

(C) ,

Rule

Federal

72

Rule

for a

Recommendation

of

Civil

report

was

filed

and
on

2016, and the Magistrate Judge recommended the Petition

be dismissed without prejudice for lack of jurisdiction.

ECF

No.

9.

the

By

receiving a

parties

were

objections

copy of

advised

to

the

recommendations.

of

Report

their

Magistrate

Id. at 7.

The Court,

the

and Recommendation,

right

to

Judge's

file

written

findings

and

Neither party filed an objection.

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

Judge's

Report

No.

in

9,

therefore,
WITHOUT

relief

does

and

its

entirety

ORDERED

PREJUDICE

under

Recommendation

that
and

Johnson

as
the

U.S.

Court's

see

(April 18,

decision

in Johnson

on

Court's

Petition,

United

apply retroactively,

6418,

the

PETITIONER

v.

filed

IS

135

Welch v.

was

new

2016,

1,

that

be
his

S.Ct.

It

ECF

is,

DISMISSED
claim

2551

United States,

(slip op.)
a

9,

opinion.

ECF No.

States,

2016)

March

own

ADVISED

the Magistrate

for

(2015)

No.

15-

(holding that the

substantive

rule

of

law

that applies retroactively in cases on collateral review), and

that Petitioner therefore must file a § 2255 petition in the

district in which he was sentenced, delineating his prayer for
relief

pursuant

limitations

2255(f)(3).
petition,

to Johnson

expires

Further,

on

June

before

the

one year

26,

2016.

See

28

statute

of

U.S.C.

§

because this may be a successive habeas

Petitioner may need to seek authorization for a second

petition from the Fourth Circuit.
2

The

pursuant
appeal

Petitioner

to

with

this
the

may

Final
Clerk

appeal

Order
of

the

from

by

the

filing

Court

at

judgment

a

written

the

Courthouse,

600 Granby Street,

23510,

sixty days

from

Because

within
the

Petitioner

has

the date

failed

to

of

notice

Walter

United States

E.

Norfolk,
entry of

demonstrate

entered

"a

of

Hoffman

Virginia
judgment.

substantial

showing of the denial of a constitutional right," 28 U.S.C.
2253(c)(2),
22 (b) ,

pursuant

this

Court

appealability.

to

Federal

declines

Rule
to

of

issue

See Miller-El v. Cockrell,

Appellate
a

Procedure

certificate

537 U.S.

§

322,

of

335-36

(2003) .

The Clerk is DIRECTED to forward a copy of this Order and
the

Application

for

Second

or

Successive

Relief

to

the

Petitioner and counsel of record for the Respondent.
It

is so ORDERED.

(Si
Rebecca Beach Smith

Chief Judge
Rebecca Beach Smith

Chief United States District Judge

Norfolk, Virginia

Date: (Wl 3,3^0
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