Taylor v. Ormond

Filing 15

FINAL ORDER. It is ORDERED that the Court agrees with and ADOPTS and APPROVES the 10 Report and Recommendation in its entirety as the Court's own opinion. Accordingly, the Respondent's 7 Motion to Dismiss for Lack of Jurisdiction is GR ANTED, and the 1 Petition is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that judgment be entered in favor of the Respondent. 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 8/17/2019. Copies mailed 8/17/2019. (jmey, )

IN THE UNITED STATES DISTRICT COURT

FILED

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

AUG 1 9 2019
CLERK. US DISTRICT COURT

THOMAS JEROME TAYLOR,

NORFOLK. VA

Petitioner,
Civil Action No. 2:I8-cv-236

V.

J. RAY ORMOND,

Respondent.
FINAL ORDER

Before the Court is a petition for a writ of habeas corpus(ECF No. 1)filed pursuant to 28
U.S.C. § 2241, and the Respondent's motion to dismiss (ECF No. 7). In 2006, Petitioner pled
guilty and was sentenced in the United States District Court for the Middle District of North

Carolina to one count of possession with intent to distribute cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). United States v. Taylor, l:05cr418 (M.D.N.C. Aug. 23, 2006)

(ECF No. 24). Based on two prior North Carolina convictions, ECF No. 8, attach. 1, Petitioner
was classified as a career offender under U.S.S.G. § 4B1.1 and was sentenced to 195 months of

imprisonment. Id. In his petition, the pro se Petitioner seeks resentencing without the Career
Offender enhancement pursuant to the ruling in Johnson v. United States, 135 S. Ct. 2551 (2015)
and in light of United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018) allowing 28 U.S.C.
§ 2255(e) savings clause to provide relief.

The matter was referred for disposition to a United States Magistrate Judge pursuant to

28 U.S.C. §§ 636(b)(l)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and

the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate

Judges. In a Report and Recommendation entered on May 24, 2019 (ECF No. 10), the

Magistrate Judge recommended the motion to dismiss be granted, and the petition be denied and
dismissed with prejudice. The parties were advised of their right to file written objections to the
Report and Recommendation. Neither the Petitioner nor the Respondent filed objections with

the Court and the time to do so has expired.'
Having reviewed the record and having heard no objection, the Court agrees with the
Report and Recommendation on the grounds stated by the Magistrate Judge and ADOPTS and
APPROVES the Report and Recommendation (ECF No. 10) in its entirety as the Court's own

opinion. Accordingly, the Respondent's motion to dismiss(ECF No. 7)is GRANTED,and the
Petition (ECF No. 1) is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED
thatjudgment be entered in favor ofthe Respondent.
The Petitioner is hereby notified that he 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 Granby Street, Norfolk, Virginia 23510, within thirty
(30) days from the date judgment is entered. Because the Petitioner has failed to demonstrate a
substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) and
Federal Rule of Appellate Procedure 22(b)(1), the Court declines to issue a certificate of

appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335-36(2003).

' On June 13, 2019, Petitioner requested an enlargement of time to file written objections to the Report and
Recommendation. The Court granted the extension of time and ordered the petitioner to file his objections by July
9, 2019. ECF No. 12. The Court's Order, ECF No. 12, was returned as "not deliverable as addressed, unable to

forward." ECF No. 13. The Court issued another Order, directing the Clerk to resend a copy of the Court's Order
granting Petitioner's request for Enlargement of Time, to the return address listed on Petitioner's envelope and
extending the time for the filing of his objections to the Report and Recommendation to August 5, 2019. ECF No.
14.

2

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 L. WfigiTi Alien
United States District Judge
Arenda L. Wright Allen
United States District Judge
Norfolk, Virginia

August l"^,2019