Young v. USA

Filing 9

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 7 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION THAT 1 PETITIONER'S 28 U.S.C. § 2255 PETITION BE DENIED. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STR ICKEN from the active docket of this Court. Because the petitioner has failed to object, he has waived his right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/11/2017. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 9/11/2017: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LANCE D. YOUNG,
Petitioner,
v.

Civil Action No. 5:16CV109
(Criminal Action No. 5:05CR63-01)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION THAT PETITIONER’S
28 U.S.C. § 2255 PETITION BE DENIED
I.

Background

The pro se petitioner, a federal inmate, filed a motion under
28 U.S.C. § 2255. In that motion, the petitioner requests that the
Court reconsider and set aside the judgment in his criminal case
pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015).

The

petitioner argues that Johnson invalidated the residual clause of
the career offender enhancement in the Sentencing Guidelines and,
thus, that he does not qualify for a § 4B1 enhancement because he
does not have two prior convictions that qualify as predicate
offenses under § 4B1.2(a).
Previously, the petitioner was convicted of four counts from
a five-count indictment after a four-day trial.

He was found

guilty in Count One of conspiracy to possess with intent to
distribute in excess of 100 grams of heroin, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(B); in Count Two of possession with

intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C); in Count Three of aiding and abetting the
possession with intent to distribute heroin in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2; and in Count
Five of possession of a firearm in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(I). The petitioner
filed a direct appeal with the United States Court of Appeals for
the Fourth Circuit, in which the appellate court affirmed the
district court’s judgment.

The petitioner’s petition for writ of

certiorari with the United States Supreme Court was also denied.
The petitioner filed his first motion to vacate under § 2255,
which was dismissed on the merits.

The petitioner’s motion to

amend that judgment was denied, and the Fourth Circuit subsequently
dismissed his appeal. The Fourth Circuit later accepted a petition
for rehearing and rehearing en banc as timely filed, but also
denied that petition.

This Court then received a letter addressed

to the public defender inquiring about Johnson.

In response to a

subsequent notice of deficient pleading, the petitioner indicated
that he did not intend to open a § 2255 motion but wanted only the
advice of the public defender.

However, he also indicated that he

wished to preserve a claim under Johnson, and the Court later
entered an order dismissing the motion and advising the petitioner
that he must take affirmative steps if he wishes to seek relief
under Johnson.

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The petitioner’s pending third § 2255 motion asks this Court
to set aside the judgment in his criminal case pursuant to Johnson.
Specifically, the petitioner alleges that Johnson invalidated the
residual

clause

of

the

career

offender

enhancement

in

the

Sentencing Guidelines in addition to the residual clause in the
Armed Career Criminal Act.

The petitioner argues that he does not

qualify for a career offender enhancement under § 4B1 of the
Sentencing

Guidelines

because

he

does

not

have

two

prior

convictions that qualify as predicate offenses under § 4B1.2(a).
In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate Judge Michael
John Aloi for initial review and report and recommendation. In his
report and recommendation, the magistrate judge recommends that the
petition be dismissed.
that

if

they

The magistrate judge informed the parties

objected

to

any

portion

of

the

report

and

recommendation, they were required to file written objections
within 14 days after being served with copies of the report.
Neither party filed objections.

For the following reasons, this

Court

magistrate

affirms

and

adopts

the

judge’s

report

and

recommendation.
II.

Applicable Law

As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld

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unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
III.
In

his

report

and

Discussion

recommendation,

the

magistrate

judge

correctly found that the petitioner’s pending § 2255 motion is a
second or successive habeas corpus motion because the petitioner’s
first § 2255 motion was dismissed on its merits.

See Slack v.

McDaniel, 529 U.S. 473, 485-89 (2000) (stating that, for a motion
to

be

considered

successive,

dismissed on its merits).

a

prior

motion

must

have

been

Thus, the petitioner was required to

obtain authorization from the Fourth Circuit before filing the
successive motion.

Section 2255(h) provides:

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).
The

petitioner

did

required by § 2255(h).

not

obtain

this

authorization

as

is

Furthermore, the magistrate judge noted

that the Fourth Circuit actually denied authorization to file a
successive § 2255 motion on June 6, 2016, upon finding that, even
if Johnson were applicable, the petitioner still qualifies as a

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career offender because he has the requisite number of controlled
substance offenses.

Therefore, the magistrate judge recommended

that the petitioner’s petition be dismissed.
This Court finds no error in the above determinations of the
magistrate judge and thus upholds his recommendation.
IV.

Conclusion

Accordingly, after a review for clear error, the report and
recommendation of the magistrate judge (ECF No. 7/361) is AFFIRMED
and ADOPTED in its entirety. The petitioner’s motion for a writ of
habeas corpus pursuant to 28 U.S.C. § 2255 (ECF No. 1/355) is
DENIED.

It is further ORDERED that this case be DISMISSED WITH

PREJUDICE 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 to
counsel of record herein.

Pursuant to Federal Rule of Civil

5

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

September 11, 2017

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

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