Puzey v. Warden FCC Allenwood

Filing 26

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: denying as moot 10 Motion for Leave to File; denying as moot 16 Motion to Expedite; adopting 17 Report and Recommendations re: 1 Petition for Writ of Habeas Corpus filed by Michael Paul Puzey. The Petitioners 28 U.S.C. § 2241 petition [ECF No. 1 is DISMISSED. The Petitioners objections are OVERRULED. Signed by Chief Judge Gina M. Groh on 11/18/15. (njz) copy mailed to pro se pet via cert. return rec't mail

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
MICHAEL PAUL PUZEY,
Petitioner,
v.

CIVIL ACTION NO.: 3:15-CV-67
(GROH)

WARDEN FCC ALLENWOOD,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge John S. Kaull.
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Kaull for
submission of a proposed R&R. Magistrate Judge Kaull issued his R&R [ECF No. 17] on
September 23, 2015. In the R&R, the magistrate judge recommends that the Petitioner’s
28 U.S.C. § 2241 petition [ECF No. 1] be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to conduct a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a waiver of de novo review and of a
petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour,

889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). Objections to Magistrate Judge Kaull’s R&R were due within fourteen plus three
days of the Petitioner being served with a copy of the same. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). On October 14, 2015, the Court granted the Petitioner’s motion to extend
the objections deadline. Subsequently, the Petitioner timely filed his objections to the R&R,
which were received by the Court on October 22, 2015.
I. Background
The Petitioner’s claims relate to a judgment and sentence imposed by the United
States District Court for the Northern District of West Virginia on October 22, 2001, after
a jury found the Petitioner guilty on multiple counts charged in two separate criminal
actions.

The Petitioner was convicted on five Counts in Criminal Action Number

3:00-CR-57. On Count 1 (conspiracy to distribute cocaine base), the Petitioner was
sentenced to life imprisonment. On Counts 38, 44 and 54 (distribution of varying amounts
of cocaine base), the Petitioner received concurrent sentences of 240 months’
imprisonment. On Count 55 (distribution of over 5 grams of cocaine base), the Petitioner
was sentenced to a concurrent sentence of 480 months’ imprisonment. As part of the
same judgment, pursuant to an offense alleged in Criminal Action Number 3:00-CR-64, the
Petitioner was convicted of the use of a firearm during and in relation to a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) and was sentenced to a consecutive 60month term of imprisonment.
On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the
Petitioner’s conviction and sentence. United States v. Puzey, 73 F. App’x 549, 554 (4th Cir.
2003) (per curiam) (unpublished). Subsequently, the Petitioner filed a petition for writ of
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certiorari with the Supreme Court, which was denied on December 15, 2003.

The

Petitioner filed his first motion to vacate his conviction and sentence under 28 U.S.C.
§ 2255 on July 26, 2004. The Court entered an order denying that motion on October 24,
2005, and the Fourth Circuit dismissed his appeal on May 4, 2006. The Petitioner filed
another § 2255 motion on March 10, 2014. This Court denied his § 2255 motion and
thereafter denied his motions to amend and for reconsideration. The Petitioner filed
multiple appeals from those denials, each of which the Fourth Circuit dismissed.
The Petitioner originally filed the instant 28 U.S.C. § 2241 petition on December 4,
2014, in the United States District Court for the Middle District of Pennsylvania.1 In his
petition, the Petitioner argued that, pursuant to the United States Supreme Court’s decision
in Watson v. United States, 552 U.S. 74 (2007), the Petitioner was actually innocent of the
offense charged in Criminal Action No. 3:00-CR-64, the use of a firearm during and in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Notably, in his
answers to the questions contained in the form § 2241 petition, the Petitioner indicated that
he had never appealed his conviction or filed a prior motion under 28 U.S.C. § 2255.
The United States District Court for the Middle District of Pennsylvania found that
the Petitioner’s habeas petition was “not appropriately brought” as a 28 U.S.C. § 2241
petition, and instead necessitated transfer to the Petitioner’s sentencing court “for
consideration as a motion to correct sentence under 28 U.S.C. § 2255.” “In sum,” the
district court held, “Puzey invites this Court under the guise of a habeas petition to do
something which the sentencing court should do in the first instance, that is, consider

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When he filed his petition, the Petitioner was incarcerated at United States Penitentiary, Allenwood,
in Pennsylvania. He has since been transferred to a federal facility in Beaumont, Texas.

3

setting . . . aside his conviction and sentence.” The district court thoroughly considered and
rejected outright the argument that 28 U.S.C. § 2255 provided an ineffective or inadequate
remedy, finding that “the representations that the petitioner makes in his petition simply do
not demonstrate that he is entitled to resort to seeking habeas relief under 28 U.S.C. §
2241 on the grounds that a motion under 28 U.S.C. § 2255 would be ineffective or
inadequate.” Accordingly, upon finding that the instant petition is better seen as a motion
to vacate under 28 U.S.C. § 2255 and should have been filed in the Petitioner’s sentencing
court, the district court transferred the matter to this Court.
Shortly after the above-styled action was opened in this district, the Petitioner filed
a motion to supplement the pleadings, wherein he posited that “a grant of a writ of error
coram nobis may be appropriate” under the circumstances presented by his petition. While
his petition was under consideration, the Petitioner submitted additional filings, including
a motion to expedite the proceedings and a notice of his intent to seek a writ of mandamus.
On September 23, 2015, Magistrate Judge Kaull issued his R&R. Upon reviewing
the petition, together with the procedural and factual history of the Petitioner’s case, the
magistrate judge concluded that the instant petition must be dismissed. As the district court
in the Middle District of Pennsylvania had already conducted a thorough review of the
argument that § 2241 provided an appropriate avenue for relief because § 2255 posed an
inadequate or ineffective remedy, the magistrate judge did not revisit that issue. Instead,
as directed by the district court in the Middle District of Pennsylvania, the magistrate judge
reviewed the instant petition as a motion filed under § 2255. Of course, contrary to the
representations the Petitioner made to the Middle District of Pennsylvania, he has filed
other § 2255 motions in the past. His first motion was denied on the merits in 2005. His
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next motion was dismissed as second or successive. Therefore, as the Petitioner has once
again failed to obtain an order from the Fourth Circuit authorizing him to proceed with a
second or successive motion, the magistrate judge recommended that the instant petition
be dismissed. As to the Petitioner’s claim that a writ of error coram nobis should issue, the
magistrate judge found that the Petitioner is not entitled to any such relief, in part because
a prisoner who remains in custody—like the Petitioner—is barred from seeking a writ of
error coram nobis.
II. Discussion
In his objections to the R&R, the Petitioner contends that his claim of actual
innocence entitles him to relief regardless of the successive nature of his petition.
Additionally, he asserts that he cannot be considered “in custody” in relation to the offense
charged in 3:00-CR-64, because the sentence imposed in that criminal action was ordered
to run consecutive to the life sentence imposed in 3:00-CR-57. As the Petitioner timely filed
his objections to the R&R, this matter is now ripe for disposition.
Pursuant to 28 U.S.C. § 2255(h), a second or successive motion must be certified,
as provided in 28 U.S.C. § 2244, by a panel of the appropriate court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). Section 2244(b)(3)(A) provides that, [“b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the district court to consider the
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application.”
In his recent filings in this district, the Petitioner does not dispute that he has
previously filed a § 2255 motion that was decided on the merits. Instead, he argues that
his § 2241 petition was appropriately filed because § 2255 provides an inadequate or
ineffective remedy. He maintains that he has met the “savings clause” of 28 U.S.C.
§ 2255(e) under the requirements of that provision and of In re Jones, 226 F.3d 328, 33334 (4th Cir. 2000). But this is the same argument addressed by the United States District
Court for the Middle District of Pennsylvania in that court’s order transferring the instant
matter to this court. That court found that the petition was not appropriately brought under
§ 2241, but was instead properly construed as a § 2255. For this reason, while recognizing
that “the petition could be dismissed,” the district court transferred the Petitioner’s case
here, as a defendant’s sentencing court is the proper forum for a § 2255 motion to vacate.
This Court finds, much as the magistrate judge did, that it would be inefficient to transfer
this case yet again, as the Petitioner is plainly seeking relief under 28 U.S.C. § 2255, not
§ 2241, and as the Middle District of Pennsylvania—which, at the time, was the appropriate
venue for the Petitioner’s § 2241 petition—has already concluded that the Petitioner’s
savings clause argument is without merit. Accordingly, as the instant petition constitutes
an unauthorized second or successive habeas application, the Court must dismiss the
petition. The Petitioner’s objections on this issue are OVERRULED.
The Petitioner’s attempt to obtain relief by way of a writ of error coram nobis is
equally unavailing. A writ of error coram nobis is a remedy of last resort, available “only
where an error is ‘of the most fundamental character’ and there exists no other available
remedy.” United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012) (quoting United
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States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988)). In order to obtain such relief, a
Petitioner must show that “(1) a more usual remedy is not available; (2) valid reasons exist
for not attacking the conviction earlier; (3) adverse consequences exist from the conviction
sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of
the most fundamental character.”

Id. (internal quotation marks omitted) (quoting

Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987)). “The Fourth Circuit has
held that a writ of error coram nobis must be brought to the same court that convicted and
sentenced the defendant.” Whitley v. North Carolina, No. 5:12-HC-2016-BO, 2012 WL
8123581, at *1 (E.D.N.C. Aug. 16, 2012) (collecting cases), aff’d per curiam sub nom.
Whitley v. Strada, 488 F. App’x 755 (4th Cir. 2012).
Of critical importance in this case, coram nobis relief is not available while a
petitioner is still in custody. See United States v. Toolasprashad, No. 3:85-CR-45-BO-1,
2012 WL 482305, at *1 (E.D.N.C. Feb. 14, 2012), aff’d per curiam, 474 F. App’x 408 (4th
Cir. 2012). For this reason, the magistrate judge recommended that this Court reject the
Petitioner’s coram nobis argument. The Petitioner objects to the magistrate judge’s
conclusion on this issue by arguing that he has not yet begun serving the consecutive
sentence imposed in 3:00-CR-64, and therefore he cannot be deemed to be “in custody”
pursuant to his conviction on the count charged in that case. But both the United States
Supreme Court and the Fourth Circuit have held that consecutive sentences are viewed
in the aggregate for purposes of determining whether a prisoner seeking relief is
considered to be “in custody.” See Garlotte v. Fordice, 515 U.S. 39, 43-46 (1995); Peyton
v. Rowe, 391 U.S. 54, 67 (1968); Bernard v. Garaghty, 934 F.2d 52, 54 (4th Cir. 1991).
Accordingly, the Petitioner remains “in custody” and he cannot sidestep the prohibition on
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second or successive § 2255 petitions by claiming that a writ of coram nobis is appropriate
in this case. His objections concerning his request for a writ of error coram nobis are
OVERRULED.
Upon careful consideration of the record, the parties’ motions and the R&R, the
Court finds no clear error with regard to the portions of the R&R to which the Petitioner did
not object.
III. Conclusion
Accordingly, the Court finds that Magistrate Judge Kaull’s Report and
Recommendation [ECF No. 17] should be, and is, hereby ORDERED ADOPTED. The
Petitioner’s 28 U.S.C. § 2241 petition [ECF No. 1] is DISMISSED as a second or
successive habeas application. The Petitioner’s objections are OVERRULED. The
Petitioner’s Motion to Supplement Pleadings [ECF No. 10] and his Motion to Expedite
§ 2241 Proceedings [ECF No. 16] are DENIED AS MOOT. This matter is ORDERED
STRICKEN from the active docket of this Court.
Because this matter was transferred to this district for consideration under 28 U.S.C.
§ 2255, the Court has conducted a review to determine whether the Petitioner is entitled
to a certificate of appealability. A court may issue a certificate of appealability “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). If a district court denies a petitioner’s claims on the merits, then “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). “If, on the other hand, the denial was procedural, the petitioner must

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show ‘that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.’” United States v. McRae, 793
F.3d 392, 397 (4th Cir. 2015) (quoting Slack, 529 U.S. at 484). Here, upon a thorough
review of the record, the Court concludes that the Petitioner has not made the requisite
showing.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record and
to the pro se Petitioner at his last known address as shown on the docket sheet.
DATED: November 18, 2015

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