Johnson v. Purdue
Filing
12
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: The 10 report and recommendation of the magistrate judge is AFFIRMED AND ADOPTED. Accordingly,the petitioner's 1 petition is DENIED WITH PREJ UDICE. Further, it is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 10/14/2015. (kac) (Copy to pro se petitioner (via cm/rrr))
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ANTHONY JOHNSON,
Petitioner,
v.
Civil Action No. 5:14CV105
(STAMP)
RUSSELL A. PURDUE,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Background
The pro se1 petitioner, a federal inmate, filed a petition for
habeas corpus under 28 U.S.C. § 2241 (“§ 2241”). In that petition,
he challenges the validity of his sentence and conviction for being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e).
In 2008, the petitioner entered into a
guilty plea for the above-listed offense.
The United States
District Court for the Middle District of Pennsylvania accepted the
petitioner’s plea and sentenced him in 2009 to the following: a
180-month term of imprisonment, a fine of $1,000.00, a special
assessment fee of $100.00, and a four-year term of supervised
release.
The petitioner appealed his sentence, claiming that the
district court erred in denying his motion to suppress. The United
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
States
Court
sentence.
of
Appeals
for
the
Third
Circuit
affirmed
his
Further, the Supreme Court of the United States denied
his petition for a writ of certiorari.
The petitioner later filed a motion to vacate, modify, or
correct his sentence under 28 U.S.C. § 2255 (“§ 2255”).
In that
motion, he claimed he received ineffective assistance of counsel,
that the government set forth an insufficient factual basis for his
plea, and that the district court and government violated his due
process rights.
Third
Circuit
appealability.
The district court denied his motion, and the
denied
his
request
for
a
certificate
of
Further, the Supreme Court of the United States
denied his petition for a writ of certiorari.
In the § 2241 petition at issue, the petitioner argues that
his conviction should be vacated because he allegedly discovered
new evidence.
Further, he believes that the government contains
proof in its records that the petitioner is innocent.
Based on
allegedly new evidence, the petitioner argues that a § 2255 motion
is inadequate or ineffective to test the legality of his detention.
United States Magistrate Judge James E. Seibert entered a
report and recommendation.
ECF No. 10.
In that report and
recommendation, he recommends that the petitioner’s § 2241 petition
be denied with prejudice.
In particular, the magistrate judge
points out that the savings clause does not apply because the crime
for which the petitioner was convicted remains a criminal offense.
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Therefore, the magistrate judge recommends that this Court deny
with prejudice the petitioner’s § 2241 petition.
The petitioner
did not file any objections to the report and recommendation.
II.
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 no
objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
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As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
III.
Discussion
A federal prisoner may seek relief under § 2241 when a
petition pursuant to § 2255 is “inadequate or ineffective to test
the legality of his detention.”
28 U.S.C. § 2255(e) (the “savings
clause”); see In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
However, under the savings clause, “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
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§ 2255 motion.”
In re Vial, 115 F.3d at 1194 n.5 (internal
citations omitted).
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 finds that the petitioner fails to establish the
elements required by Jones.
Specifically, 18 U.S.C. §§ 922(g)(1)
and 924(e), 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.
The crime petitioner was convicted of still
remains criminal.
Therefore, the petitioner cannot satisfy the
second prong of the Jones test and his § 2241 petition must be
denied insomuch as it challenges his conviction.
Moreover, as the
magistrate judge points out, the “new” evidence the petitioner
claims exists is “neither newly discovered nor evidence.”
10 *6 n.9.
ECF No.
This Court finds no clear error in the magistrate
judge’s findings.
Because he fails to demonstrate that § 2255 is
an inadequate or ineffective remedy, the petitioner’s § 2241
application must be denied.
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IV.
Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 10) is AFFIRMED AND ADOPTED.
Accordingly ,the petitioner’s petition is DENIED WITH PREJUDICE.
Further, it is ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the petitioner has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
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:
October 14, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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