Triplett v. DeBoo

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 12 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. Petitioner's 1 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is DENIED and DISMISSED WITH PREJUDICE. 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, he is ADVISED that he must file a notice of appeal with the Clerk of this Court within 60 days after the dat e of entry of this judgment order. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 1/22/2014. (copy to Pro Se Petitioner via Certified Mail, rrr) (nmm) (Additional attachment(s) added on 1/22/2014: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TERRANCE CURTIS TRIPLETT,
Petitioner,
v.

Civil Action No. 5:12CV140
(STAMP)

KUMA DEBOO, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

On September 24, 2012, the pro se1 petitioner, Terrance Curtis
Triplett, filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2241.2

Because the petitioner did not file his petition on the

proper form, the Court entered a deficiency notice and gave him 21
days to re-file.

The petitioner thereafter filed his petition on

the proper court-approved form.

In attacking the validity of his

conviction, the petitioner claims he is innocent of his firearms
conviction pursuant to 18 U.S.C. § 922(g)(1).

Specifically, the

petitioner asserts that intervening changes in the law make him
actually innocent of such violation.

Therefore, he asserts that

his firearms conviction should be vacated.

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).
2

The petitioner is currently an inmate at FCI-Gilmer.

In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate James E.
Seibert

for

Magistrate

initial

Judge

review

Seibert

and

issued

report
a

and

report

recommendation.

and

recommendation

recommending that the petitioner’s § 2241 petition be denied and
dismissed with 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 14 days after being served a copy of the report and
recommendation.

Thereafter,

the

petitioner

did

file

timely

objections. For the reasons set forth below, this Court adopts and
affirms the magistrate judge’s report and recommendation in its
entirety.
II.

Facts

On September 10, 2010, the petitioner, pursuant to a plea
agreement, pled guilty to two counts of the indictment filed
against him in the Western District of Pennsylvania. Specifically,
the petitioner pled guilty to the charge of possession with intent
to distribute less than 500 grams of a mixture and substance
containing a detectable amount of cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) and to the charge of possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Based

on

his

plea,

the

court

in

the

Western

District

of

Pennsylvania sentenced the petitioner to 188 months imprisonment,

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with a six year term of supervised release.

On July 21, 2011, the

petitioner filed a motion to vacate under 28 U.S.C. § 2255 in the
Western District of Pennsylvania.

The court denied the § 2255

motion because the petitioner, pursuant to his plea agreement, had
waived his right to collaterally attack his sentence.
III.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

Because the

petitioner objects to the report and recommendation as a whole, the
magistrate judge’s recommendation will be reviewed de novo.
IV.

Discussion

The magistrate judge’s report and recommendation states that
the petitioner failed to show that he is entitled to review under
§ 2241 because he has not satisfied the requirements set forth in
In re Jones, 226, F.3d 328 (4th Cir. 2000).

Specifically, the

magistrate judge found that even if the petitioner satisfied two
out of three of the Jones requirements, he cannot satisfy the
second element of Jones because the crimes he was convicted of
remain

criminal

offenses.

Therefore,

the

magistrate

judge

concludes that because the petitioner attacks the validity of his
conviction and sentence but fails to establish that he meets the
Jones requirements, the petitioner has not demonstrated that § 2255
is an inadequate or ineffective remedy and has improperly filed a

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§ 2241 petition.

In his objections, the petitioner disagrees with

the magistrate judge’s determination and argues that the law has in
fact changed, and thus he is entitled to review under § 2241.
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.”

28 U.S.C.

§ 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
when:
(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
law.
Jones, 226 F.3d at 333-34.
This Court agrees with the magistrate judge’s finding that the
petitioner has failed to establish the elements required by Jones.
The second element requires that subsequent to the petitioner’s
direct appeal and first § 2255 motion, the substantive law changed

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so as to make the conduct that the petitioner was convicted of not
criminal.

The petitioner argues that Carachuri-Rosendo v. Holder,

560 U.S. 563 (2010), changed the law and rendered him actually
innocent of the firearms charge because he did not serve more than
a year in prison for his prior conviction.
was

not

a

felon

in

possession.

misinterprets Carachuri-Rosendo.

The

Thus, he argues that he
petitioner,

however,

Carachuri-Rosendo “mandate[s]

that prior state convictions must be classified on the basis of the
maximum sentence which the particular defendant in question could
have received under the applicable state sentencing scheme at the
time of conviction.”

Latson v. O’Brien, No. 3:13-CV-28, 2013 WL

4400110 *6 (N.D. W. Va. Aug. 15, 2013).

Here, petitioner was

actually sentenced to 11½ months to 23 months imprisonment for his
prior conviction of delivery of a controlled substance by the Court
of Common Pleas of Allegheny County, Pennsylvania.

Thus, such his

sentence establishes that he was convicted of a crime punishable as
a federal felony, as such crime was obviously punishable by
imprisonment for more than one year.

Accordingly, such case law

did not render the petitioner actually innocent of the firearms
charge and, therefore, the petitioner has not established the
second element of Jones.
Even if the petitioner’s argument on the merits were true,
however, he still cannot show that he satisfies the second element
of Jones, as the Carachuri-Rosendo decision that he relies upon was

5

decided on June 14, 2010 and the petitioner pled guilty to the
firearms charge three months later on September 1, 2010 and filed
his first § 2255 motion on July 21, 2011.

Thus, Carachuri-Rosendo

was not decided subsequent to his conviction, let alone subsequent
to his first § 2255 motion, as is required to establish the second
element in Jones.
The petitioner then argues in his objections to the report and
recommendation that even if Carachuri-Rosendo was not decided
subsequent to his conviction, this Court should consider the
instant matter on its merits based on the Supreme Court decisions
in Lafler v. Cooper, 130 S. Ct. 2577 (2012), and Missouri v. Frye,
132 S. Ct. 1399 (2012).

Both Lafler and Frye dealt with issues

concerning ineffective assistance of counsel.

The petitioner

asserts in his petition that his firearms conviction should be
reversed, not because of ineffective assistance of counsel, but
because of an intervening change of law. Thus, this Court need not
consider the petitioner’s arguments raised for the first time in
his objections to the magistrate judge’s report and recommendation,
which were not presented in his original petition.

See United

States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998) (finding an
apparent waiver of the defendant’s arguments waived for the first
time in his objections); Purdie v. Graham, No. 9:09-CV0971, 2011 WL
940469 *4 (N.D. N.Y. Mar. 16, 2011) (citing Morales v. Santor,
94–CV–0217, 1995 WL 760625, at *2 (N.D. N.Y. Dec. 4, 1995)).

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Lastly, in the petitioner’s objections he requests that this
Court transfer the petitioner’s case to the Western District of
Pennsylvania where he was originally sentenced, so he may assert
his ineffective assistance of counsel claims with that district.
This argument is without merit. Again, the petition in this matter
does not assert any claims for ineffective assistance of counsel.
Transferring this matter to Western District of Pennsylvania would
not change this fact.

Further, as stated above, the petitioner’s

claims actually asserted in his petition are without merit and
thus, transferring his case to the Western District of Pennsylvania
would be futile.

Accordingly, the petitioner’s objections are

overruled.
V.
Having

reviewed

the

Conclusion
magistrate

judge’s

report

and

recommendation de novo, this Court hereby AFFIRMS and ADOPTS the
report and recommendation (ECF No. 12) in its entirety.

Further,

petitioner’s petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 is DENIED and DISMISSED WITH PREJUDICE.

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 the issues to which objection was made, he is ADVISED that he

7

must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

January 22, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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