Reed v. USA
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION THAT PETITIONER'S 28 U.S.C. § 2255 PETITION BE DENIED: Adopting 10 Report and Recommendations on 1 Motion to Vacate, Set Aside or C orrect Sentence (2255); and Denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Antonio R. Reed ; Case is Dismissed and Stricken from active docket of this Court; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 1/10/18. (copy to Petitioner by cert. mail)(soa) (Additional attachment(s) added on 1/10/2018: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ANTONIO R. REED,
Civil Action No. 5:17CV48
(Criminal Action No. 5:06CR15)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION THAT PETITIONER’S
28 U.S.C. § 2255 PETITION BE DENIED
The pro se1 petitioner, a federal inmate, filed a motion under
28 U.S.C. § 2255.
Previously, the petitioner entered a plea of
conspiracy to distribute more than fifty grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 846. The
petitioner was sentenced as a career offender to 235 months of
imprisonment and five years of supervised release, based on his
convictions in this Court for aiding and abetting the distribution
aggravated trafficking, for which he was convicted in the Franklin
County, Ohio Court of Common Pleas.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
In his present § 2255 motion, the petitioner requests that the
Court reduce his sentence pursuant to the “Holloway Doctrine.”
Presumably, the petitioner is referring to the decision entered in
United States v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014)
(permitting a reduction to the defendant’s “excessive” sentence “in
the spirit of fairness”). The petitioner filed his first motion to
vacate under § 2255 on August 27, 2009, which was dismissed on the
This Court affirmed and adopted the recommendation of the
magistrate judge that the motion be denied as untimely.
In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate Judge James
E. Seibert for initial review and report and recommendation.
his report and recommendation, the magistrate judge recommends that
the petition be dismissed.
The magistrate judge informed the
parties that if they 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
As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
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
dismissed on its merits).
Thus, the petitioner was required to
obtain authorization from the United States Court of Appeals for
the Fourth Circuit before filing the successive motion.
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.
magistrate judge recommended that the petitioner’s petition be
This Court finds no error in the above determinations of the
magistrate judge and thus upholds his recommendation.
Accordingly, after a review for clear error, the report and
AFFIRMED and ADOPTED in its entirety.
The petitioner’s motion for
a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (ECF Nos.
1/95) is DENIED. It is further ORDERED that this case 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
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
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
Procedure 58, the Clerk is DIRECTED to enter judgment on this
January 10, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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