Warwick v. DeBoo
MEMORANDUM OPINION AND ORDER Affirming and Adopting 11 Report and Recommendations : Denying as moot 16 Motion To Take Judicial NoticeDenying as moot 17 Motion To Supplement; Denying and Dismissing with Prejudice 2 Petition for Writ of Habeas Corpus, filed by Johnny Edgar Warwick. Case to be dismissed and stricken from active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr on 2/23/12. (copy to petitioner by cert. mail )(soa) (Additional attachment(s) added on 2/23/2012: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHNNIE EDGAR WARWICK,
Civil Action No. 5:11CV114
KUMA DEBOO, Warden,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
On August 17, 2011, the pro se1 petitioner, Johnnie Edgar
Warwick, filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2241 requesting that the Court vacate his sentence and resentence him to a 20-year term of imprisonment.2
Also on August
17, 2011, the petitioner filed a motion for expedited preliminary
review requesting that the Court review his petition immediately to
determine if his issues have merit. Because the petitioner did not
deficiency notice and gave him twenty-one days to re-file.
August 29, 2011, the petitioner filed a motion for leave to proceed
on the original pleadings arguing that his original application for
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
The petitioner is currently an inmate at FCI-Gilmer.
litigation and should be considered by the Court.
also requested that should the Court find his original petition to
be insufficient, he should be given an additional twenty-one days
On September 13, 2011, the Court issued an order
denying the petitioner’s motion for leave to proceed on the
original pleadings and directing him to file his petition on the
correct form within twenty-one days.
The petitioner filed his
petition on the correct form on September 28, 2011.
On October 13, 2011, United States Magistrate Judge James E.
Seibert issued a report and recommendation recommending that the
prejudice. The magistrate judge advised the parties that, pursuant
to 28 U.S.C. § 636(b)(1)(C), any party may file written objections
to his proposed findings and recommendations within fourteen days
after being served with a copy of the report and recommendation.
On October 20, 2011, the petitioner filed a motion for an extension
recommendation. This Court granted that motion on October 20, 2011
and directed the petitioner to file any objection to the report and
recommendation by November 28, 2011.
On December 12, 2011, the
petitioner filed untimely objections. Subsequently, the petitioner
filed a motion to take judicial notice and a motion to supplement
pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
For the reasons set forth below, this Court finds that the report
and recommendation by the magistrate judge must be affirmed and
adopted in its entirety.
On December 3, 1996, the petitioner was indicted in the United
States District Court for the Eastern District of Tennessee on
eight counts of distributing marijuana in violation of 21 U.S.C.
§ 841(a)(1) and four counts of using or carrying a firearm during
and in relation to drug trafficking offenses in violation of 18
U.S.C. § 924(c).
On March 26, 1997, the petitioner pled guilty to
Counts One, Two, Four, Six, Seven, Nine, Ten, and Eleven.
16, 1997, Judge James H. Jarvis found the petitioner guilty as to
Counts Three, Five, and Eight, and not guilty as to Count Twelve.
The petitioner was sentenced to 60 months imprisonment as to Count
Three to run consecutively with 240 months as to Count Five, which
was also to run consecutively with 240 months as to Count Eight.
The petitioner was also sentenced to four months as to each of
Counts One, Two, Four, Six, Seven, Nine, Ten, and Eleven to run
concurrently to one another and consecutively to the sentence
imposed on Counts Three, Five, and Eight.
The petitioner has filed numerous actions in the United States
District Court for the Eastern District of Tennessee and in the
United States Court of Appeals for the Sixth Circuit seeking relief
from his conviction.
His first post-conviction proceeding was a
notice of appeal filed on August 12, 1997.
The Sixth Circuit
ultimately affirmed the decision of the district court, and the
Supreme Court denied the petitioner’s subsequent petition for writ
Thereafter, the petitioner filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255 in the
United States District Court for the Eastern District of Tennessee.
The district court denied that motion on November 24, 2005.
January 12, 2006, the petitioner filed a notice of appeal, which
was denied by the Sixth Circuit.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
See Webb v. Califano, 458 F.
Supp. 825 (E.D. Cal. 1979). The petitioner has filed objections in
Thus, this Court will undertake a de novo review as to
those portions of the report and recommendation to which objections
In his § 2241 petition, the petitioner argues: (1) his 540month sentence for using a firearm during a drug trafficking
offense is illegal in light of Abbot v. United States, 131 S. Ct.
18 (2010); and (2) his conviction for use of a firearm during a
drug trafficking offense is invalid in light of Watson v. United
States, 552 U.S. 74 (2007).
In the report and recommendation, the magistrate judge first
discusses the difference between a § 2241 petition and a § 2255
Citing In re Jones, 226 F.3d 328 (4th Cir. 2000), the
magistrate judge explains that the petitioner has not raised an
appropriate basis for § 2241 relief because he has attacked the
validity of his sentence yet failed to demonstrate that § 2255 is
an inadequate or ineffective remedy.
The magistrate judge states
that the petitioner cannot satisfy the second element of the In re
Jones test because he cannot show that the conduct for which he was
convicted is now deemed not to be criminal.
The magistrate judge
also states that the petitioner is mistaken in his application of
Watson v. United States to this case. In Watson, the Supreme Court
held that trading drugs for a gun does not constitute “use” of a
firearm during and in relation to a drug trafficking crime. Id. at
In this case, the charges against the petitioner never turned
on the fact that he “used” a firearm in connection with the sale of
marijuana, but rather than he “carried” a firearm.
magistrate judge holds that the petitioner’s argument regarding
Abbot v. United States also questions the validity of his sentence,
and thus, is improperly included in his § 2241 petition.
The petitioner raises three objections to the report and
recommendation: (1) he objects to the magistrate judge’s assessment
that he “carried” a firearm during the drug transactions enumerated
in Counts Three, Five, and Eight; (2) he objects to the magistrate
judge’s assessment that he did not invoke the “savings clause” with
respect to the firearms claim and that he did not meet the second
prong of the In re Jones test; and (3) he objects to the magistrate
judge’s assessment that he has not demonstrated that § 2255 is an
inadequate or ineffective remedy to test the validity of the
criminal judgment and sentence against him.
Again, the petitioner
cites to Watson and argues that the conduct for which he was
charged has since be deemed not to be a criminal offense.
petitioner also reiterates that his stacked 540-month sentence
violates the principles of Abbot.
In his motion to take judicial notice, the petitioner requests
that this Court take judicial notice of a pending case in this
According to the petitioner, Johnson raises the same
anti-stacking argument and in that case, United States Magistrate
Judge David J. Joel found that summary dismissal was not warranted.
In his motion to supplement, the petitioner argues that
supplementation of his petition is appropriate in light of recent
changes in the law that render the magistrate judge’s report and
Specifically, the petitioner contends
that he is being detained unlawfully since the judgment against him
has been rendered illegal by the holding in Abbot.
then goes on to discuss the anti-stacking rule announced in Abbot
and its applicability to his case.
This Court finds that because the petitioner’s objections to
the report and recommendation were untimely and in violation of
this Court’s October 20, 2011 order, they must be overruled.
However, even if the petitioner’s objections had been timely filed,
this Court’s ruling would remain unchanged.
Like his original
petition, the petitioner’s objections also attack the validity of
his sentence, reasserting many of the same arguments.
A federal prisoner may seek relief pursuant to 28 U.S.C.
§ 2241 when a petition pursuant to § 2255 is “inadequate or
ineffective to test the legality of his detention.”
§ 2255(e); see In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
“However, the remedy afforded by § 2255 is not rendered inadequate
or ineffective merely because an individual has been unable to
obtain relief under that provision, or because an individual is
procedurally barred from filing a § 2255 motion.”
F.3d at 1194 n.5 (internal citations omitted).
In re Vial, 115
Rather, § 2255 is
inadequate and ineffective to test the legality of a conviction
(1) at the time of the 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
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
This Court agrees that the petitioner has failed to establish
the elements required by In re Jones.
Specifically, 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 924(c), the substantive laws under
which the petitioner was convicted, have not changed since the date
of the petitioner’s conviction such that the petitioner’s conduct
would no longer be deemed criminal.
Therefore, the petitioner
cannot satisfy the second prong of the In re Jones test and his
§ 2241 petition must be denied and his objections overruled.
Based upon a de novo review, this Court finds that the report
and recommendation of the magistrate judge should be, and is hereby
AFFIRMED and ADOPTED in its entirety. Accordingly, for the reasons
set forth above, the petitioner’s § 2241 is DENIED and DISMISSED
Further, the petitioner’s motion to take judicial
notice (ECF No. 16) and his motion to supplement (ECF No. 17) are
DENIED AS MOOT.
It is ORDERED that this civil action be DISMISSED
and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on issues to which objection was made, he is ADVISED that he must
file a notice of appeal with the Clerk of this Court within thirty
days after the date that the judgment order in this case is
See Fed. R. App. P. 4(a)(1).
He is further advised that
a certificate of appealability is not required for a federal
§ 2253(c) (certificate of appealability is required in a § 2255
proceeding or in a habeas corpus proceeding in which the detention
complained of arises from process issued by a State court); see
also Fed. R. App. P. 22; Drax v. Reno, 338 F.3d 98, 106 n.12 (2d
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to the
pro se petitioner by certified mail and to counsel of record
Pursuant to Federal Rule of Civil Procedure 58, the Clerk
is DIRECTED to enter judgment on this matter.
February 23, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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