Ashlock v. United States of America
Filing
17
MEMORANDUM OPINION AND ORDER: The Court OVERRULES petitioner's objections to PF&R; ADOPTS the factual and legal analysis contained within the 10 PF&R; DISMISSES petitioner's [1 & 8] Petition for Writ of Habeas Corpus; DENIES petitioner 39;s 4 Application to Proceed without Prepayment of Fees or Costs; and DISMISSES this matter from the court's active docket. The Court further DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 11/23/2015. (cc: Petitioner, pro se; and counsel of record) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TRENITA ASHLOCK,
Petitioner,
v.
Civil Action No: 1:14-17899
UNITED STATES,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court are petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, (Doc. Nos.
1, 8), and petitioner’s application to proceed without
prepayment of fees or costs.
(Doc. No. 4).
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 August 31,
2015.
(Doc. No. 10).
In the PF&R, Magistrate Judge VanDervort
recommended that the court deny petitioner’s application to
proceed without prepayment of fees and costs, dismiss
petitioner’s application for a writ of habeas corpus, and remove
this matter from the court’s docket.
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(Doc. No. 10 at 9–10).
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
requested, and received, two additional extensions of time in
which to file objections.
(Doc. Nos. 13, 15).
timely filed objections on November 9, 2015.
Petitioner
(Doc. No. 16).
Because petitioner’s objections are without merit, the court
adopts the PF&R, denies her application to proceed without
prepayment of costs and fees and dismisses her petition for a
writ of habeas corpus.
I.
Background
On October 7, 2011, petitioner was convicted in the Eastern
District of Virginia of one count of conspiracy to commit mail
fraud in violation of 18 U.S.C. §§ 1349 and 1341.
United States
v. Ashlock, Case No. 4:11-cr-00049 (E.D. Va. Feb. 13, 2012)
(Doc. Nos. 18–20).
The district court sentenced petitioner to a
total term of seventy-five months’ incarceration.
Nos. 30, 32.
Id. at Doc.
Petitioner did not appeal her conviction or
sentence to the United States Court of Appeals for the Fourth
Circuit.
On August 17, 2012, petitioner filed a motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255 in the
Eastern District of Virginia.
In her motion, petitioner raised
the following grounds for relief:
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(1) trial counsel was
ineffective by failing to explain adequately the plea agreement
and failing to object to the presentence report; (2) the
district court erred in its calculation of the appropriate
guideline range; (3) the unconstitutionality of the search and
seizure conducted at her home; and (4) that the United States
violated the terms of the plea agreement.
Ashlock v. United
States, Civil No. 4:12-cv-133; 2013 WL 5275908, at *5–7 (E.D.
Va. Sept. 19, 2013).
motion.
Id. at *7.
The district court denied petitioner’s
The Fourth Circuit denied a certificate of
appealability and dismissed her case.
Ashlock v. United States,
557 F. App’x 209 (4th Cir. 2014) (per curiam).
Petitioner filed the instant petition under 28 U.S.C.
§ 2241 on June 9, 2014.
In the petition, petitioner challenges
her conviction and sentence on the following grounds:
(1)
ineffective assistance of counsel; (2) the district court erred
in its calculation of the appropriate guideline range; and (3)
the search warrant issued to search her home was
unconstitutional.
II.
(Doc. No. 1).
Analysis
Magistrate Judge VanDervort concluded in the PF&R that the
relief petitioner seeks is afforded under § 2255, rather than
§ 2241.
Petitioner’s arguments for relief clearly address the
validity of her conviction and sentence, rather than the terms
of her imprisonment.
Magistrate Judge VanDervort concluded that
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transfer of the petition to the Eastern District of Virginia
would be futile, because petitioner has already proceeded under
§ 2255 before and has not received authorization to file a
successive § 2255 motion.
The court further found that
petitioner’s petition did not qualify under the “savings clause”
of § 2255 and, as a result, her § 2241 petition should be
dismissed.
Petitioner’s objections do not relate to the analysis or
conclusions contained in the PF&R, but instead reiterate the
arguments made in her original petition.
These objections “do
not direct the court to a specific error in the magistrate’s
proposed findings and recommendations” because they are “general
and conclusory.”
1982).
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
As a result, a court need not conduct a de novo review
of such objections.
Id.
If anything, petitioner’s objections confirm the PF&R’s
conclusion that her petition is, in actuality, a § 2255 motion.
In her objections, petitioner repeatedly attacks the legality of
the search warrant used to search her property and seize
evidence used against her at her criminal trial.
These
arguments, already considered and rejected by the sentencing
court, challenge the validity of her conviction and such issues
are properly raised in a § 2255 motion.
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Petitioner offers no
information or argument that contradicts this finding.
Consequently, petitioner’s objections are overruled.
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
petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241, (Doc. Nos. 1, 8), DENIES petitioner’s application
to proceed without prepayment of fees or costs, (Doc. No. 4),
and DISMISSES this matter from the court’s active 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.”
2253(c)(2).
Id. §
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.
court DENIES a certificate of appealability.
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Accordingly the
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to petitioner, pro
se.
IT IS SO ORDERED on this 23rd day of November, 2015.
ENTER:
David A. Faber
Senior United States District Judge
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