Proffitt v. Warden Entzel

Filing 18

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 15 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The petitioner's 5 12 motions for an evidentiary hearing are DENIED, the petitioner's 11 motion requesting duplication of an or der is DENIED, and the petitioner's 17 motion to vacate is DENIED. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 2/20/19. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 2/20/2019: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WILBERT EUGENE PROFFITT,
Petitioner,
v.

Civil Action No. 5:18CV102
(STAMP)

WARDEN ENTZEL,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

The pro se1 petitioner, Wilbert Eugene Proffitt (“Proffitt”),
filed

a

petition

(“§ 2241”).

for

ECF No. 1.

habeas

corpus

under

28

U.S.C.

§

2241

The action was referred to United States

Magistrate Judge James P. Mazzone for initial review and report and
recommendation

pursuant

to

Local

Rule

of

Prisoner

Litigation

Procedure 2.
The

magistrate

judge

filed

a

report

and

recommendation

recommending that the petitioner’s petition (ECF No. 1) be denied
as unintelligible and dismissed from the docket, and that the
petitioner’s motions for an evidentiary hearing (ECF Nos. 5 and 12)
and his motion requesting duplication of an order (ECF No. 11) be
dismissed as moot.

1

ECF No. 15 at 5.

The magistrate judge informed

“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).

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.
The petitioner filed a motion to vacate.

ECF No. 17.

Id.
That

motion does not seem to deal with this petition (ECF No. 1).
II.

Facts

The pro se petitioner filed a petition for habeas corpus under
28 U.S.C. § 2241.
contends

that

the

ECF No. 1.
Federal

In the petition, the petitioner

Bureau

of

Prisons

(“BOP”)

“has

consistently from 1973 attempted different methods to destroy
Proffitt, and does so today.”

Id. at 5.

The petitioner also

states that he “was removed from Lewisburg penitentiary after Dr.
Mazur stated ‘they will kill you here’ in August 1973[,]” and that
he is “incarcerated because of Miskell v. United States — filed in
Richmond.”

Id.

The petitioner states that “Proffitt v. LaRose,

4:17CV2626 states the nature of this matter[.]”

Id. at 6.

For

support, the petitioner states that he was “arrested on Halloween
of 2017 and taken to Elkins, W. Va., sent to Ohio when a murder
plot was discovered, sent to Philadelphia and placed on a mental
health ward where an actual attempt involving BOP personnel is
involved.”

Id.

Moreover, the petitioner contends that “the seed

of this lies in an attempt in this government to destroy the
Constitution’s authority[.]”

Id.

For support, the petitioner

asserts that “[t]he basis is one of religion and political with

2

communist

takeover

from

within

—

persons

with

knowledge

are

targeted (with some success) one homicide in Maryland probable.”
Id.

Lastly, the petitioner states that “already in practice in

five states and eight American cities, Philadelphia being one of
them

.

.

.

persons

are

set-up,

deaths

classified,

charges

fabricated and can be discovered through a method hereto described
as ‘puppet-master’ being placed into action.”

Id. at 7.

In the

section of his petition that provides space for him to state the
relief he seeks, petitioner states, “[i]n 1979 a hearing was held
on the above after Proffitt went to the Atlanta Constitution
(newspaper) and he was placed in [a] penitentiary in California,
records in Richmond were removed — then Senator did a partial [ ]
investigation — four volumes — but concerted efforts was then and
now is being used by federal insurgents.”

Id. at 8.

The petitioner then filed a motion for an evidentiary hearing.
ECF No. 5.

Petitioner then filed a motion requesting duplication

of an order (ECF No. 11) and another motion for an evidentiary
hearing (ECF No. 12).
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
III.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation

3

to which objection is timely made.
file

any

objections

to

the

Because the petitioner did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
IV.

Discussion

In his report and recommendation, the magistrate judge found
that the petitioner’s petition is incoherent and “does not assert
factual allegations which would give rise to a valid basis for
relief which this Court has the authority to grant.”

Id. at 4.

This Court finds no error in the determinations of the
magistrate judge and thus upholds his recommendation.

Moreover,

because the motion to vacate (ECF No. 17) does not seem to deal
with this petition (ECF No. 1), this Court does not construe this
motion as an objection to the magistrate judge’s report and
recommendation (ECF No. 15).

Therefore, this Court denies the

petitioner’s motion to vacate (ECF No. 17).
V.

Conclusion

Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 15) is hereby AFFIRMED and ADOPTED in its entirety.
Specifically, the petitioner’s motions for an evidentiary hearing

4

(ECF Nos. 5 and 12) are DENIED, the petitioner’s motion requesting
duplication

of

an

order

(ECF

No.

11)

is

DENIED,

and

the

petitioner’s motion to vacate (ECF No. 17) is DENIED.
It is further ORDERED that this case be DISMISSED WITHOUT
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 counsel of record herein and to the pro se
petitioner by certified mail.

Pursuant to Federal Rule of Civil

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

February 20, 2019

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

5