Lampley v. O'Brien
Filing
16
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE 14 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE. The petitioners petition is DISMISSED WITHOUT PREJUDICE to the petitioners right to seek authorization from the United States Court of Appeals for the Eleventh Circuit to file a second or successive § 2255 motion; (2) the petitioners amended motion is construed as a 10 motion to supplement and that motion is GRANTED; and (3) the respondents 11 motion to dismiss is DENIE D AS MOOT. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/2/16. (copies to Pro Se Petitioner via CM/rrr; counsel via CM/ECF)(lmm) (Additional attachment(s) added on 6/2/2016: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
STACY LAMPLEY,
Petitioner,
v.
Civil Action No. 5:16CV6
(STAMP)
TERRY O’BRIEN, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
I.
Background
At issue is the pro se petitioner’s petition for a writ of
habeas corpus under 28 U.S.C. § 2241 (“§ 2241”).
The petitioner
asserts that the recent holding in Johnson v. United States, 135 S.
Ct. 2551 (2015), applies to his case.
The petitioner also filed a
pending “amended motion,” wherein he reasserts his claim under
Johnson. ECF No. 10. Previously, the petitioner pleaded guilty to
being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g).
At the time of sentencing, the
sentencing court1 determined that the Armed Career Criminal Act
(“ACCA”) applied, which resulted in a sentence of 180 months.
The
petitioner later filed a motion under 28 U.S.C. § 2255 (“§ 2255”),
which the court denied.
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The respondent filed a motion to dismiss,
The petitioner pleaded guilty in and was sentenced by the
United States District Court for the Middle District of Florida.
See Criminal Action No. 8:10CR484.
wherein he argues that the petitioner’s petition under § 2241
should be dismissed.
ECF No. 11.
Instead of filing a § 2241
petition, the respondent contends that the petitioner should first
seek authorization to file a second or successive motion under
§ 2255 for his requested relief under Johnson.
United States Magistrate Judge James E. Seibert then entered
a
report
and
petitioner’s
recommendation,
petition
be
wherein
dismissed
he
recommends
without
that
prejudice
to
the
the
petitioner’s right to seek authorization from the United States
Court of Appeals for the Eleventh Circuit to file a second or
successive motion under 28 U.S.C. § 2255.
ECF No. 14.
The
magistrate judge points out that the petitioner’s § 2241 petition
is an improper vehicle for his claim under Johnson.
Rather, he
should pursue relief under Johnson by seeking authorization to file
a second or successive § 2255 motion.
Therefore, Magistrate Judge
Seibert recommends that the petitioner’s petition be dismissed
without prejudice.
Moreover, the magistrate judge recommends that
the petitioner’s “amended motion” be construed as a motion to
supplement his § 2241 petition, and that such motion be granted.
As to the respondent’s motion to dismiss, Magistrate Judge Seibert
recommends that such motion be denied as moot.
The petitioner did
not file objections to the report and recommendation.
For the reasons set forth below, the report and recommendation
of the magistrate judge is AFFIRMED AND ADOPTED. Accordingly, this
2
Court makes the following rulings: (1) the petitioner’s petition is
DISMISSED WITHOUT PREJUDICE to the petitioner’s right to seek
authorization from the Eleventh Circuit to file a second or
successive § 2255 motion; (2) the petitioner’s “amended motion”
(ECF No. 10) is construed as a motion to supplement and that motion
is GRANTED; and (3) the respondent’s motion to dismiss is DENIED AS
MOOT.
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).
28
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
After reviewing the record and the parties’ filings, this
Court finds no clear error as to the findings of the magistrate
judge.
The magistrate judge correctly states that a federal
prisoner may seek relief under § 2241 when a petition pursuant to
3
§ 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 § 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.
In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000).
The
“gatekeeping
provisions”
referenced
above
state
following:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain (1) newly discovered evidence
that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or(2) a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable.
28 U.S.C. § 2255(h)(1-2) (emphasis added).
4
the
In this case, the Court in Johnson announced a new rule of
constitutional
law,
collateral review.
which
may
be
retroactively
applied
on
Therefore, the gatekeeping provision quoted
above has been satisfied.
That means that the petitioner cannot
demonstrate that § 2255 is inadequate or ineffective to test the
legality of his sentence.
Moreover, he has previously filed a
§ 2255 motion, which was denied.
Thus, as the magistrate judge
points out, the petitioner must now seek authorization from the
appropriate
court
of
appeals
in
order
to
file
a
second
or
successive § 2255 motion.
Upon a review of the record and the findings of the magistrate
judge,
this
Court
is
not
“left
with
the
conviction that a mistake has been committed.”
(1948).
definite
and
firm
333 U.S. 364, 395
Therefore, the findings of the magistrate judge are not
clearly erroneous, and thus, the report and recommendation is
AFFIRMED AND ADOPTED in its entirety.
IV.
Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge is AFFIRMED AND ADOPTED. Accordingly, this
Court makes the following rulings: (1) the petitioner’s petition is
DISMISSED WITHOUT PREJUDICE to the petitioner’s right to seek
authorization from the United States Court of Appeals for the
Eleventh Circuit to file a second or successive § 2255 motion; (2)
the petitioner’s “amended motion” (ECF No. 10) is construed as a
5
motion to supplement and that motion is GRANTED; and (3) the
respondent’s motion to dismiss is DENIED AS MOOT.
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:
June 2, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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