Perez-Colon v. O'Brien
ORDER ADOPTING REPORT AND RECOMMENDATION: finding no error, it is the opinion of this Court that Magistrate Judge Aloi's 20 Report and Recommendation is hereby ORDERED ADOPTED for the reasons more fully stated therein. The Court GRANTS the Respondent's 11 Motion to Dismiss and DENIES and DISMISSES the 1 Petitioner's 28 U.S.C. § 2241 petition WITH PREJUDICE. Because the instant petition seeks relief pursuant to § 2241, the Court makes no certificate of appealabi lity determination in this matter. The Court DIRECTS the Clerk to strike this case from the active docket and enter a separate judgment order in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 04/12/2017. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 4/12/2017: # 1 Certified Mail Return Receipt) (cwm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO.: 3:14-CV-66
TERRY O’BRIEN, Warden,
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge Michael J. Aloi. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Aloi for submission of
an R&R. On March 16, 2017, Magistrate Judge Aloi issued his R&R, recommending that
this Court deny and dismiss with prejudice the Petitioner’s 28 U.S.C. § 2241 petition.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a petitioner’s right to appeal this Court’s order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
In this case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure, objections to Magistrate Judge Aloi’s R&R were due within
fourteen days after being served with a copy of the same. The Petitioner was served with
the R&R on March 20, 2017, and timely filed his objection, asserting that, in light of the
Supreme Court’s decision in United States v. Santos, 553 U.S. 507 (2008), his conduct
can no longer support a conviction under 18 U.S.C. § 1956(a)(1).
previously raised his Santos argument in his response to the Respondent’s motion to
dismiss. See ECF No. 19. The magistrate judge considered this argument in the R&R
and found it unavailing. Thus, because the substance of the Petitioner’s objection was
already presented to and considered by the magistrate judge, it does not necessitate de
novo review by this Court. See Felton v. Colvin, Civil No. 2:12-CV-558, 2014 WL 315773,
at *7 (E.D. Va. Jan. 28, 2014) (“The Court may reject perfunctory or rehashed objections
to [R&Rs] that amount to a second opportunity to present the arguments already
considered by the [m]agistrate.” (internal quotations and citation omitted)); Deyton v.
Keller, Civil Nos. 1:10cv127, 1:10cv128, 1:10cv129, 2011 WL 4498837, at *4 (W.D.N.C.
Sept. 27, 2011) (“[M]erely reiterating or incorporating the same arguments made in the
pleading submitted to the Magistrate Judge does not warrant de novo review.”).
Accordingly, the Court OVERRULES the objection and reviews the R&R for clear error.
On December 18, 1998, a jury found the Petitioner guilty of conspiracy to possess
and distribute multi-kilogram amounts of cocaine, heroin and marijuana in violation of 21
U.S.C. §§ 841(a)(1) and 846, and conspiracy to engage in illegal financial transactions
involving drug proceeds in violation of 18 U.S.C. §§ 1956(a)(1) and 1957. In the instant
petition, the Petitioner alleges that he is factually innocent of his conviction under
§ 1956(a)(1)(B)(i).1 Specifically, the Petitioner argues that the evidence presented did
not show that the purpose of the transaction was to conceal monetary funds. He contends
the evidence presented merely demonstrated that the funds had been concealed—not
that he harbored the intent to conceal them. However, in affirming his conviction and
sentence under § 1956(a)(1)(B)(i), the First Circuit found that there was sufficient
evidence to support that the Petitioner was “intimately involved in [his codefendant’s] drug
operations,” which was “enough for a jury to find beyond a reasonable doubt that when
[the Petitioner] agreed to have the air conditioners installed, he knew that [his
codefendant] was using them to conceal her drug money.” United States v. MartinezMedina, 279 F.3d 105, 116 (1st Cir. 2002). Thus, in upholding his conviction, it is clear
that the First Circuit found evidence of the Petitioner’s specific intent to conceal.
Upon consideration, and finding no error, it is the opinion of this Court that
Magistrate Judge Aloi’s Report and Recommendation [ECF No. 20] is hereby ORDERED
ADOPTED for the reasons more fully stated therein.
The Court GRANTS the
Respondent’s Motion to Dismiss [ECF No. 11] and DENIES and DISMISSES the
Petitioner’s 28 U.S.C. § 2241 petition [ECF No. 1] WITH PREJUDICE.
Because the instant petition seeks relief pursuant to § 2241, the Court makes no
certificate of appealability determination in this matter.
Section 1956(a)(1)(B)(i) provides,
Whoever, knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of specified unlawful activity . . . knowing
that the transaction is designed in whole or in part to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds of specified unlawful
activity . . . shall be sentenced to a fine of not more than $500,000 or twice the value of the
property involved in the transaction, whichever is greater, or imprisonment for not more
than twenty years, or both.
The Court DIRECTS the Clerk to strike this case from the active docket, enter a
separate judgment order in favor of the Respondent, and mail a copy of this Order to the
pro se Petitioner and all counsel of record.
DATED: April 12, 2017
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