Metcalf v. Kallis

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 10/3/2018. Copy to pro se petitioner by cm,rrr.(cmd)

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

BRADFORD METCALF,
Petitioner,
v.

CIVIL ACTION NO.: 3:17-CV-121
(GROH)

S. KALLIS, Warden,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Amended Report and Recommendation (AR&R@)
of United States Magistrate Judge Robert W. Trumble. ECF No. 9. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Trumble for
submission of a proposed R&R. Magistrate Judge Trumble issued his R&R on June 14,
2018. In his R&R, Magistrate Judge Trumble recommends that the Petitioner=s § 2241
petition [ECF No. 1] be denied and dismissed without prejudice.
I. Background
The Petitioner in this case was convicted by a federal jury in the Western District
of Maryland of: (1) conspiracy to possess machine guns to threaten to assault and
murder federal employees; (2) two counts of unlawfully possessing a firearm silencer
and a destructive device; (3) four counts of unlawful possession of a machine gun; and
(4) carrying a semiautomatic assault weapon during and in relation to a crime of
violence. The Petitioner asserts that he is actually innocent because the charges are
unconstitutional.

In the instant petition, the Petitioner seeks to have the statutes

declared unconstitutional, have his indictment dismissed, and be immediately released
from prison.
II. Standard of Review
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review
of the magistrate judge=s findings where 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 to which no objection is made. 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 Trumble=s R&R were due within fourteen plus
three days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). Petitioner filed a
motion for extension of time to file his objections. ECF No. 14. The Court granted
Petitioner’s request for an extension, giving Petitioner until October 1, 2018 to file
objections. ECF No. 15. Having timely filed objections [see ECF No. 18], the Court will
conduct a de novo review of the portions of the R&R to which the Petitioner objects.
III. Discussion
Magistrate Judge Trumble recommended that the petition be dismissed because
Petitioner seeks relief relating to the validity of his conviction and sentence, which are
matters properly considered on direct appeal or in a § 2255 motion. While §.2255
contains a savings clause, Magistrate Judge Trumble determined that the Petitioner is
not entitled to its application.

Specifically, Magistrate Judge Trumble provided that

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Petitioner cannot satisfy the second element of the Jones test because the conduct of
which Petitioner was convicted remains to be criminal. In his objections, Petitioner
attempts to set forth case law to establish that his conviction is unconstitutional. This
portion of Petitioner’s objections fails to take into consideration that he still does not
satisfy the second element of Jones. Petitioner also claims that there are other § 2241
cases which address the issues of actual innocence and miscarriage of justice.
Furthermore, he asserts that establishing a claim of actual innocence is all he is
required to do to bring his claim under § 2241. However, Petitioner’s arguments do not
change the test established in Jones.
The charges to which the Petitioner pleaded guilty remain unlawful.

The

Petitioner does not argue, nor could he, that there has been a change in law legalizing
conspiracy to possess machine guns to threaten to assault and murder federal
employees, unlawfully possessing a firearm silencer and a destructive device, unlawful
possession of a machine gun, or carrying a semiautomatic assault weapon during and
in relation to a crime of violence. As a result, the Petitioner cannot satisfy the second
Jones requirement. See In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Therefore,
as addressed in the R&R, the savings clause is inapplicable to the Petitioner’s attack on
his underlying conviction.
IV. Conclusion
In sum, the Petitioner does not meet the requirements for the savings clause
codified in 28 U.S.C. §.2255(e) and the Petitioner’s claims cannot be considered under
§ 2241. Accordingly, upon careful review, the Court ORDERS that Magistrate Judge
Trumble’s Report and Recommendation [ECF No. 9] is ADOPTED for the reasons more

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fully stated therein.

The Petitioner’s § 2241 Petition [ECF No. 1] is DENIED and

DISMISSED WITHOUT PREJUDICE.
The Clerk is DIRECTED to strike this matter from the Court’s active docket. The
Clerk is further DIRECTED to transmit copies of this Order to all counsel of record
herein and to mail a copy of this Order to the pro se Petitioner by certified mail, return
receipt requested.
DATED: October 3, 2018

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