Ephraim v. Hogsten
Filing
9
MEMORANDUM OPINION AND ORDER: The Court OVERRULES Plaintiff's objections and CONFIRMS and ACCEPTS the 5 Proposed Findings and Recommendation of Magistrate Judge R. Clarke VanDervort; DENIES Plaintiff's 2 APPLICATION to Proceed Without P repayment of Fees and Costs; DISMISSES Plaintiff's 1 Application for Writ of Habeas Corpus (2241) and DIRECTS the Clerk to remove this matter from the Court's docket. The Court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 4/4/2014. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
LIONELL E. EPHRAIM1,
Plaintiff,
v.
CIVIL ACTION NO. 1:12-02339
KAREN F. HOGSTEN, Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
I.
Introduction
By Standing Order, this action was referred to United States
Magistrate Judge R. Clarke VanDervort for submission of proposed
findings and recommendation.
Magistrate Judge VanDervort
submitted his proposed findings and recommendation on January 24,
2013.
In that Proposed Findings and Recommendation (“PF&R”), the
magistrate judge recommended that this court deny plaintiff’s
application to proceed without prepayment of fees and costs,
dismiss petitioner’s application for Writ of Habeas Corpus, and
remove this matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge VanDervort’s
Findings and Recommendation.
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The failure of any party to file
Plaintiff states that he is also known as Lionell Elizah
Williams.
such objections constitutes a waiver of such party's right to a
de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363
(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).
Moreover,
this court need not conduct a de novo review when a petitioner
“makes general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings
and recommendations.”
Cir. 1982).
Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Petitioner filed objections to the Proposed Findings
and Recommendation on February 6, 2013.
Because petitioner filed
his objections timely, this court has conducted a de novo review
of the record as to those objections.
See 28 U.S.C. § 636(b)(1)
(“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.”).
II.
Analysis
Under 28 U.S.C. § 2255, a federal prisoner can move to
vacate, set aside, or correct a sentence “imposed in violation of
the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law.”
U.S.C. § 2255.
See 28
As Magistrate Judge VanDervort correctly noted,
“[a] section 2241 petition that seeks to challenge the validity
of a federal sentence must either be dismissed or construed as a
section 2255 motion.”
See PF&R at pp. 3-4 (citing Pack v.
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Yusuff, 218 F.3d 448, 452 (5th Cir. 2000)).
Section 2255 is the
exclusive remedy unless the petitioner can demonstrate that it is
inadequate or ineffective.
In Re Jones, 226 F.3d 328, 333 (4th
Cir. 2000).
In the instant case, Magistrate Judge VanDervort concluded:
Although Petitioner claims to be challenging the
“execution” of his sentence, Petitioner is clearly
challenging the validity of his sentence imposed by the
Eastern District of Virginia. Specifically, Petitioner
argues that the Eastern District of Virginia failed to
properly sentence him under the mandatory Sentencing
Guidelines and failed to comply with 18 U.S.C. §§
3584(b) and 3553. Petitioner’s claims are therefore
properly considered under Section 2255, not under
Section 2241.
PF&R at p.5.
Distilled to its essence, plaintiff’s main objection to the
PF&R is with Magistrate Judge VanDervort’s recommendation that
this court construe petitioner’s application under 28 U.S.C. §
2241 as a § 2255 motion and dismiss this application for lack of
jurisdiction.
This court agrees with the Magistrate Judge’s
recommendation and OVERRULES petitioner’s objection.
According to plaintiff, his “sole habeas claim . . . is a
clear constitutional challenge to the FBOP’s authority to detain
him and to execute a facially invalid federal sentence.”
Objections at. p. 2.
He goes on to say, that “even if [his]
`factual assertion’ that his sentence is invalid is construed as
a constitutional challenge to that sentence, such a challenge is
inextricably tied to the habeas review of his primary
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constitutional claim that FBOP is without `lawful authority’ to
imprison him under such sentence.”
Id. at p. 3.
Plaintiff
states:
Although Ephraim has alleged that his sentence is
invalid and such an allegation infers that his claim
should be brought by a motion under § 2255, a claim of
an invalid sentence brought under § 2255 refers only to
the sentence as “imposed,” as distinct from the
sentence as it is being executed. Ephraim’s sentence
is being executed in an unlawful manner. That is,
Ephraim’s sentence is being executed without lawful
authority to do so.
Id. at p. 5.
“[W]hether a motion is made under § 2255 should be
determined by reference to the relief sought in the motion rather
than what label the movant uses.”
Johnson v. United States,
Civil Action No. 6:12-cv-00632, 2013 WL 6633953, *2 n.3 (S.D.W.
Va. Dec. 17, 2013) (quoting Adams v. United States, 155 F.3d 582,
583 n.1 (2d Cir. 1998).
Therefore, regardless of how Ephraim
characterizes his claim, it is clear that he is challenging the
validity of the sentence imposed by the sentencing court.
See,
e.g., Gibson v. Bledsoe, Civil No. 3:CV-12-0747, 2013 WL 1497427,
*4 (M.D. Pa. Apr. 10, 2013) (dismissing a petition for writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241 as a successive
§ 2255 petition even where petitioner insisted he was “`not
attacking the legality of his conviction or sentence,’ but rather
the Bureau of Prisons’ (BOP) execution of his sentence”).
Based
on the foregoing, this court agrees with the magistrate judge
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that plaintiff’s claim is more accurately framed as a 28 U.S.C. §
2255 petition.2
As a § 2255 petition, plaintiff’s claim must be brought in
the sentencing court.
See 28 U.S.C. § 2255 (directing that a
prisoner “may move the court which imposed the sentence . . .”).
The plaintiff in this case was convicted and sentenced in the
Eastern District of Virginia.
Accordingly, this court lacks
jurisdiction to hear his § 2255 petition and OVERRULES
plaintiff’s objections.
III.
Conclusion
The court hereby OVERRULES plaintiff’s objections and
CONFIRMS and ACCEPTS the factual and legal analysis contained
within the Proposed Findings and Recommendation.
Accordingly,
the court DENIES plaintiff’s application to proceed without
prepayment of fees and costs; DISMISSES plaintiff’s application
for Writ of Habeas Corpus; and DIRECTS the Clerk to remove this
matter from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2
28 U.S.C. §
Moreover, the court agrees with Magistrate Judge
VanDervort’s assessment that plaintiff has not shown that § 2255
is inadequate or ineffective to test the legality of his
sentence.
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2253(c)(2).
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and to
plaintiff pro se.
IT IS SO ORDERED this 4th day of April, 2014.
ENTER:
David A. Faber
Senior United States District Judge
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