Currence v. Cauley
Filing
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MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 12 Proposed Findings and Recommendation by Magistrate Judge VanDervort, OVERRULES petitioner's objections to Magistrate Judge VanDervort's PF&R, DISMISSES petitioner's 1 application for writ of habeas corpus, and DISMISSES this matter from the court's active docket. Signed by Judge David A. Faber on 10/15/2013. (cc: counsel of record) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
KAREEM JAMAL CURRENCE,
Petitioner,
v.
Civil Action No: 1:11-0088
E.K. CAULEY,
Warden
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
1).
(Doc. No.
By Standing Order, this matter was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
proposed findings and recommendations for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B).
(Doc. No. 2).
The magistrate
judge submitted his proposed findings and recommendation
(“PF&R”) on February 4, 2013.
(Doc. No. 12).
He recommended
that the petitioner’s application be dismissed.
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
in which to file any objections to the PF&R.
Petitioner filed
objections to the PF&R on February 13, 2013.
(Doc. No. 14).
Accordingly, this court has conducted a de novo review of the
record as to all of the objections.
1
See 28 U.S.C. §
636(b)(1)(C) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”).
Petitioner’s objections are without merit for the
reasons that follow.
I.
Background
Petitioner was convicted in the Eastern District of
Virginia of one count of possession with intent to distribute
cocaine base and one count of possession with intent to
distribute cocaine base within 1,000 feet of a school zone.
United States v. Currence, No. 3:05-cr-0231 (E.D. Va. Dec. 6,
2006), Doc. No. 39.
Petitioner’s conviction and subsequent
sentence of 264 months of imprisonment and a six-year term of
supervised release were affirmed by the Fourth Circuit.
United
States v. Currence, 231 F. App’x 294 (4th Cir. 2007).
Petitioner’s petition for a writ of certiorari in the United
States Supreme Court was denied.
Currence v. United States, 552
U.S. 1004 (2007).
Petitioner has made a number of attempts at post-conviction
relief.
First, petitioner filed a motion to vacate, set aside
or correct the sentence under 28 U.S.C. § 2255 in the Eastern
District of Virginia, which was denied by the district court.
Currence, No. 3:05-cr-0231, Doc. Nos. 61, 69-70.
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Next,
petitioner filed the instant petition in this court requesting
relief under 28 U.S.C. § 2241.
(Doc. No. 1).
A third petition,
and second under 28 U.S.C. § 2255, was filed in the Eastern
District of Virginia and subsequently denied as a successive
motion.
Currence, No. 3:05-cr-0231, Doc. Nos. 77-79.
Next,
petitioner filed a motion to alter or amend the judgment which
was subsequently denied.
Id., Doc. Nos. 80-82.
Petitioner then
filed another motion to vacate, set aside, or correct the
sentence which was again denied as successive.
83-84.
Id., Doc. Nos.
The Fourth Circuit Court of Appeals dismissed
petitioner’s appeal with respect to this motion.
v. Currence, 2012 WL 6701030 (4th Cir. 2012).
United States
Finally,
petitioner filed a motion pursuant to the All Writs Act in the
Eastern District of Virginia which is currently pending.
Currence, No. 3:05-cr-0231, Doc. No. 87.
II.
Petitioner’s Objections to the PF&R
The magistrate judge concluded that the claims raised by
petitioner in his § 2241 petition are ones properly considered
under § 2255.
Because petitioner was sentenced in the Eastern
District of Virginia, and relief under § 2255 is not “inadequate
or ineffective,” the magistrate judge concluded that this court
is without jurisdiction to entertain the petition.
The
magistrate judge further determined that the petition should not
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be transferred to the Eastern District of Virginia because
petitioner has sought relief under § 2255 in the sentencing
court on at least one occasion, and he has not obtained a
certification to file a second or successive motion from the
Fourth Circuit Court of Appeals.
Petitioner purports to raise seven objections to the PF&R.
The objections overlap, and for the most part “do not direct the
court to a specific error in the magistrate’s [PF&R]” because
they are “general and conclusory.”
44, 47 (4th Cir. 1982).
Orpiano v. Johnson, 687 F.2d
Normally, such non-specific objections
would waive the right to a de novo review.
Because petitioner
is proceeding pro se, however, his filings are held to a less
stringent standard than if they were prepared by a lawyer and
are construed liberally.
(1972).
Haines v. Kerner, 404 U.S. 519, 520-21
As such, the court has performed a de novo review.
That said, a de novo review does not require an in-depth
discussion of patently frivolous objections.
After a de novo
review, the court determines that petitioner’s objections are
wholly meritless.
The court adopts the magistrate judge’s
succinct factual and legal analysis in its entirety and adds the
following.
All of the objections stated by petitioner are essentially
the same.
That is, petitioner objects to the magistrate judge’s
determination that this action should have been brought under §
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2255 in the sentencing court because petitioner is essentially
arguing that his judgment and commitment order are void.
generally (Doc. No. 14).
See
Petitioner claims he is challenging
the “execution of [his] sentence” and not its validity because
the United States Marshal Service failed to properly execute and
return his judgment and commitment order by failing to sign the
“return” portion indicating that defendant was delivered to
custody.
(Doc. No. 14 at 4).
Therefore, petitioner claims, his
petition is properly brought under § 2241.
Petitioner is incorrect.
Petitioner is not challenging
matters pertaining to his “commitment or sentence” as required
to file a petition under § 2241.
See 28 U.S.C. § 2242.
Rather,
petitioner challenges the validity of his judgment and
commitment order – a matter properly considered under § 2255.
Petitioner presents no dispute as to the date of his commitment
or calculation of his sentence.
He simply complains of the
failure to properly fill in the return portion on his judgment
and commitment order and alleges that this omission deprives the
BOP of jurisdiction to enforce the criminal judgment.
14 at 5).
This argument is without merit.
(Doc. No.
See Queen v.
Martinez, 273 F. App’x 180 (3d Cir. 2008) (summarily dismissing
petitioner’s § 2241 claim that “his judgment and commitment
order was not executed because ‘return portion,’ where the
United States Marshal states that the defendant was delivered to
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the Bureau of Prisons, was not filled in.”); Anderson v. United
States Marshalls, No. 1:CV-07-0048, 2007 WL 1227697 at *1 (M.D.
Pa. April 25, 2007) (dismissing petitioner’s § 2241 claim that
his judgment and commitment order was null and void because the
“United States Marshals failed to properly execute and return
the judgment and commitment order to the district court.”).
The
explanation provided by petitioner as to why the absent
statement of his delivery to custody has affected his rights is
not convincing and provides no legal basis for the relief
requested.
Consequently, as determined by the magistrate judge,
petitioner’s claims are ones properly considered under 28 U.S.C.
§ 2255, rather than § 2241.
Because motions under § 2255 must
be filed in the sentencing court, jurisdiction is proper in the
Eastern District of Virginia.
And because petitioner has
proceeded on several occasions under § 2255 in the sentencing
court and has not obtained certification to file a successive
motion, the court will dismiss the petition rather than transfer
it to the sentencing court.
Even if petitioner were properly challenging matters
pertaining to his “commitment or detention” as required under §
2241, the court would still dismiss the petition.
§ 2242.
See 28 U.S.C.
The explicit terms of § 2255 state that a petition
under § 2241 cannot be entertained unless a § 2255 motion would
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be “inadequate or ineffective to test the legality of his
detention.”
28 U.S.C. § 2255(e).
The Fourth Circuit Court of
Appeals has ruled that relief is inadequate or ineffective when:
“(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of his 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
petitioner bears the burden of showing that relief under § 2255
is inadequate or ineffective.
Hood v. United States, 13 F.
App’x 72 (4th Cir. 2001) (unpublished decision); Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
As stated by the
magistrate judge, the petitioner “has not demonstrated and
cannot demonstrate that Section 2255 was inadequate or
ineffective such that he could resort to Section 2241.”
As
such, the petition must be dismissed.
III. Conclusion
Accordingly, the court OVERRULES petitioner’s objections to
Magistrate Judge VanDervort’s PF&R.
The court adopts the
factual and legal analysis contained within the PF&R, DISMISSES
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petitioner’s application for writ of habeas corpus (Doc. No. 1),
and DISMISSES this matter from the court’s active docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED on this 15th day of October, 2013.
ENTER:
David A. Faber
Senior United States District Judge
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