Hardy v. William

Filing 34

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: the Court OVERRULES the Petitioner's objections; the Court ORDERS Magistrate Judge Seibert's 28 Report and Recommendation ADOPTED for the reasons more fully stated therein; Petitioner's 28 U.S.C. § 2241 1 petition is DENIED and DISMISSED WITH PREJUDICE. Insofar as the Petitioner raises arguments that fall under § 2255, he has not met the requirements for issuance of a certificate of appealability. The Clerk is DIRECTED to strike this matter from the Court's active docket, enter a separate judgment in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 2/13/2017. Copy mailed to pro se petitioner by CMRR at his last known address as shown on the docket. (cwm) (Additional attachment(s) added on 2/13/2017: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

CURTIS J. HARDY,
Petitioner,
v.

CIVIL ACTION NO.: 3:15-CV-86
(GROH)

JENNIFER SAAD, Warden,
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 (AR&R@) of United States Magistrate Judge James E.
Seibert. Pursuant to this Court’s Local Rules, this action was referred to Magistrate
Judge Seibert for submission of an R&R. Magistrate Judge Seibert issued his R&R [ECF
No. 28] on July 25, 2016.

In the R&R, the magistrate judge recommends that the

Petitioner=s 28 U.S.C. § 2241 petition [ECF No. 1] be denied and dismissed with prejudice.
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
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).

Objections to Magistrate Judge Seibert=s R&R were due within

fourteen days of the Petitioner being served with a copy of the same.

28 U.S.C.

§ 636(b)(1)(C); Fed. R. Civ. P. 72(b). On August 10, 2016, the Petitioner mailed a motion
to extend the objection deadline, which the Court granted. Subsequently, he timely filed
objections to the R&R, which were received by the Court on September 13, 2016.
I. Background
The Petitioner=s claims relate to a judgment and sentence imposed by the United
States District Court for the Southern District of Mississippi on October 3, 2003, after a
jury found the Petitioner guilty of bank robbery by force or violence and illegal use of a
firearm in the commission of bank robbery.1 On Count One, bank robbery by force or
violence, the Petitioner was sentenced to 300 months of imprisonment. On Count Two,
illegal use of a firearm in the commission of bank robbery, the Petitioner received 84
months of imprisonment. These sentences were to be served consecutively, for a total
sentence of 384 months, followed by five years of supervised release on Count One and
three years of supervised release on Count Two.
On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the
Petitioner=s conviction and sentence. United States v. Hardy, 101 F. App=x 959 (5th Cir.
2004) (unpublished per curiam). Subsequently, the Petitioner filed a petition for writ of
certiorari with the Supreme Court, which was denied on January 10, 2005. Hardy v.
United States, 543 U.S. 1072 (2005). The Petitioner filed his first motion to vacate his

Information related to the Petitioner’s underlying conviction is derived from criminal action number
3:03-CR-68-1 in the Southern District of Mississippi.
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conviction and sentence under 28 U.S.C. § 2255 on December 27, 2005, which the
Southern District of Mississippi denied on February 28, 2007. The Petitioner then filed
an appeal, which the Fifth Circuit dismissed on September 9, 2008, for lack of jurisdiction
and as untimely. More than seven years later, the Fifth Circuit granted the Petitioner
authorization to file a successive § 2255 petition by Order dated May 26, 2016.
Accordingly, on June 17, 2016, the Petitioner filed a second § 2255 petition in the
Southern District of Mississippi, which is still pending.
The Petitioner filed the instant 28 U.S.C. § 2241 petition with this Court on July 15,
2015. In his petition, the Petitioner raises multiple claims for relief, including ineffective
assistance of counsel, actual innocence and due process violations. He argues the
Southern District of Mississippi abused its discretion by denying his motion for an
extension of time to file an appeal regarding the court’s denial of his first § 2255 petition.
Additionally, he argues actual innocence of his Mississippi federal conviction.
On July 25, 2016, Magistrate Judge Seibert issued his R&R recommending that
the petition be denied and dismissed with prejudice. The magistrate judge determined
the Petitioner is seeking modification of his sentence, which is appropriate under § 2255
rather than § 2241. Further, the magistrate judge concluded the Petitioner does not fulfill
any of the Jones requirements to show that § 2255 is an inadequate or ineffective remedy.
See In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). As such, the magistrate judge
found the Petitioner=s claims inappropriate under § 2241 and, because the Petitioner was
not sentenced in this District, this Court has no jurisdiction to decide the Petitioner’s
claims.
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II. Discussion
In his objections to the R&R, the Petitioner contends that a § 2255 petition is
inadequate or ineffective because he was unable to timely file his appeal and his claim of
actual innocence entitles him to relief. A prisoner “may file a habeas petition under
§ 2241 only if the collateral relief typically available under § 2255 ‘is inadequate or
ineffective to test the legality of his detention.’” Prousalis v. Moore, 751 F.3d 272, 275
(4th Cir. 2014) (quoting 28 U.S.C. § 2255(e)). Here, the Petitioner contends that § 2255
relief is inadequate or ineffective because a clerical error on the part of the Southern
District of Mississippi prevented him from timely filing his appeal and equitable tolling was
not granted. However, this argument does not satisfy the prerequisites for finding § 2255
inadequate or ineffective. In Jones, the Fourth Circuit examined these prerequisites and
concluded § 2255 inadequate and ineffective to test the legality of a conviction when
(1) at the time of conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to the prisoner's
direct appeal and first § 2255 motion, the substantive law changed such
that the conduct of which the prisoner was convicted is deemed not to be
criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of constitutional law.
226 F.3d at 333-34. Since these prerequisites were articulated, courts have focused on
actual innocence of a criminal act when deciding cases. In other words, whether the acts
for which the defendant was convicted are no longer criminal. See id. (finding Jones’
conviction for use of a firearm during a drug offense invalid because Bailey v. United
States, 516 U.S. 137 (1995), decriminalized the conduct for which Jones was convicted).
Failing to timely file a § 2255 petition, regardless of any error made by the court, clearly
does not satisfy this prerequisite, or any others, under Jones.
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In regard to the Petitioner’s claim of actual innocence, he “must first establish that
he is entitled to review under § 2241 by meeting the Jones requirements,” which, as
articulated above, is something he cannot do. See Bender v. Carter, Civil Action No.
5:14CV35, 2014 WL 6775627, at *11 (N.D. W. Va. Dec. 2, 2014). Moreover, as evinced
by the magistrate judge, even if the Petitioner satisfied the first and third elements of
Jones, the crime for which he was convicted remains a criminal offense and therefore he
cannot satisfy the second element. Accordingly, the Court OVERRULES the Petitioner’s
objections. Upon careful consideration of the remaining portions of the R&R to which no
objections are raised, the Court finds no clear error.
III. Conclusion
The representations that the Petitioner makes in his petition simply do not
demonstrate that he is entitled to relief under 28 U.S.C. § 2241. Therefore, upon finding
that the instant § 2241 petition is in actuality a motion to vacate under 28 U.S.C. § 2255,
the Court agrees with the magistrate judge’s recommendation that this Court lacks
jurisdiction and the instant petition should be denied and dismissed with prejudice.
Accordingly, the Court ORDERS Magistrate Judge Seibert=s Report and
Recommendation [ECF No. 28] ADOPTED for the reasons more fully stated therein.
The Petitioner=s 28 U.S.C. § 2241 petition [ECF No. 1] is DENIED and DISMISSED WITH
PREJUDICE.
Insofar as the Petitioner raises arguments that fall under § 2255, he has not met
the requirements for issuance of a certificate of appealability.

A court may issue a

certificate of appealability Aonly if the applicant has made a substantial showing of the
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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 A[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). AIf, on the other hand, the denial
was procedural, the petitioner must 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 strike this matter from the Court’s active docket, enter
a separate judgment in favor of the Respondent and transmit a copy of this Order to the
pro se Petitioner by certified mail, return receipt requested, to his last known address as
shown on the docket.
DATED: February 13, 2017

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