Shrader v. State of West Virginia, et al

Filing 13

MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's 10 and 11 Objections and CONFIRMS and ACCEPTS the factual and legal analysis contained within the 9 Proposed Findings and Recommendation by Magistrate Judge Dwane L. Tinsley. Ac cordingly, the court DISMISSES plaintiff's 2 Petition 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 1/17/2019. (cc: plaintiff, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
THOMAS SHRADER,
Plaintiff,
v.

CIVIL ACTION NO. 1:14-25344

STATE OF WEST VIRGINIA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed
findings and recommendation.

Magistrate Judge Tinsley submitted

his proposed findings and recommendation on August 23, 2017.

In

that Proposed Findings and Recommendation (“PF&R”), Magistrate
Judge Tinsley recommended that the district court dismiss
plaintiff’s petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 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 Tinsley’s
Findings and Recommendation.

The failure of any party to file

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 plaintiff

“makes general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings
and recommendations.”

Orpiano v. Johnson, 687 F.2d 44, 47 (4th

Cir. 1982).
Shrader timely filed objections to the PF&R.

(ECF No. 10).

On November 13, 2018, he also filed a "Motion to Grant Writ of
Habeas Corpus" which is a supplement to his earlier-filed
objections.

(ECF No. 11).

With respect to those objections, the

court has conducted a de novo review.
On June 8, 2010, a federal grand jury within the Southern
District of West Virginia returned a three-count second
superseding indictment against Shrader.

Counts One and Two

charged Shrader with using a facility of interstate commerce to
cause the delivery of a threatening communication, in violation
of 18 U.S.C. § 2261A(2), while Count Three charged him with being
a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1).

After jury trials occurring in July and August of

2010,1 Shrader was convicted on all counts.

United States v.

Thomas Creighton Shrader, Criminal Action No. 1:09-00270.

On

November 18, 2010, Shrader was sentenced to imprisonment for a
term of 235 months, followed by a five-year term of supervised
release.

Based upon three prior 1976 West Virginia convictions,

Shrader was sentenced under the Armed Career Criminal Act (the
1

Counts One and Two were tried separately from Count Three.
2

"ACCA") which increased his sentencing exposure on the felon in
possession count from a ten-year maximum sentence to a mandatory
minimum 15-year sentence.
As Magistrate Judge Tinsley noted in his PF&R, in the
instant case, Shrader is attacking the validity of the 1976
convictions in West Virginia state court that were used to
enhance the federal sentence he is currently serving.

Magistrate

Judge Tinsley concluded that Shrader could not do so for the
following reasons:
(1)

Shrader was not "in custody" for the purpose of
challenging the validity of his 1976 West Virginia
convictions;

(2)

Shrader's petition must be treated as a petition for a
writ of error coram nobis over which the court lacks
jurisdiction;

(3)

Shrader's petition is time-barred; and

(4)

Shrader's petition is a second or successive petition
and an abuse of the writ of habeas corpus.

See PF&R at pp. 6-13 (ECF No. 9).
A.

Shrader is not "in custody"

Shrader's first objection is to the PF&R's conclusion that
he was not in custody for purposes of challenging his 1976
convictions.

According to him, "Shrader is not a State prisoner

who could have filed a § 2254.

Shrader's action is State action

due to prior State convictions having a very adverse effect upon
Shrader's Federal Sentence under the Armed Career Criminal Act,
(ACCA)."

ECF No. 10 at p.2.
3

A review of the record confirms Magistrate Judge Tinsley's
conclusion that Shrader is seeking to attack the validity of his
1976 convictions in this federal proceeding.
permitted to do.

This he is not

As the Supreme Court has held:

The federal habeas statute gives the United States
district courts jurisdiction to entertain petitions for
habeas relief only from persons who are “in custody in
violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3) (emphasis
added); see also 28 U.S.C. § 2254(a). We have
interpreted the statutory language as requiring that
the habeas petitioner be “in custody” under the
conviction or sentence under attack at the time his
petition is filed. See Carafas v. LaVallee, 391 U.S.
234, 238, 88 S. Ct. 1556, 1560, 20 L. Ed. 2d 554
(1968). In this case, the Court of Appeals held that a
habeas petitioner may be “in custody” under a
conviction whose sentence has fully expired at the time
his petition is filed, simply because that conviction
has been used to enhance the length of a current or
future sentence imposed for a subsequent conviction.
We think that this interpretation stretches the
language “in custody” too far.
* * *
The question presented by this case is whether a habeas
petitioner remains “in custody” under a conviction
after the sentence imposed for it has fully expired,
merely because of the possibility that the prior
conviction will be used to enhance the sentences
imposed for any subsequent crimes of which he is
convicted. We hold that he does not.
Maleng v. Cook, 490 U.S. 488, 490-92 (1989).
Shrader objects that Maleng does not bar him from seeking
habeas relief in this court.

See ECF No. 10 at pp. 4-7.

Quoting

an unpublished case from the United States Court of Appeals for
the Fourth Circuit, Shrader contends that “in Maleng the Supreme

4

Court of the United States left open, `the question of the extent
to which an earlier expired conviction may be subject to
challenge in a collateral attack upon a later unexpired sentence
which the earlier conviction was used to enhance.’” ECF No. 11 at
p.1 (quoting United States v. Martin, 946 F.2d 888, 1991 WL
195729, *1 (4th Cir. Oct. 3, 1991)).

According to the Martin

court, “the magistrate judge’s conclusion that subject matter
jurisdiction was foreclosed by the decision in Maleng is
incorrect.

The instant fact pattern–a collateral attack upon a

current conviction which calls into question the validity of an
underlying, expired sentence–presents precisely the question left
open in Maleng.

Those circuits which have addressed the question

since Maleng have unanimously concluded that federal courts
possess jurisdiction to review this type of claim.”

Martin, 1991

WL 195729, at *2.
After Martin was decided, however, the Supreme Court did
answer the question left open by Maleng and did not decide it in
Shrader’s favor.

As one court explained the development of the

law in this area:
Under 28 U.S.C. § 2254(a), an application for a
writ of habeas corpus may only be entertained on behalf
of a person "in custody" pursuant to judgment of a
State court; see also 28 U.S.C. 2241(c)(3) ("The writ
of habeas corpus shall not extend to a prisoner unless
. . . [h]e is in custody in violation of the
Constitution or laws or treaties of the United
States."). In Maleng v. Cook, 490 U.S. 488, 109 S. Ct.
1923, 104 L. Ed. 2d 540 (1989) (per curiam), the
Supreme Court construed this "statutory language as
5

requiring that the habeas petitioner be `in custody'
under the conviction or sentence under attack at the
time his petition is filed." Id. at 490-91. At the
time he filed his application for habeas corpus relief,
Petitioner was serving the sentence on his new felony
offense. The sentence on Petitioner's 1993 conviction
for breaking and entering has been fully served;
therefore, Petitioner is no longer "in custody"
pursuant to that conviction.
In deciding Maleng, the Supreme Court expressly
declined to decide whether a habeas petitioner may
challenge the constitutionality of a state conviction
whose sentence has expired by facially attacking a
current sentence that was enhanced by the prior state
conviction. Id. at 494. In other words, the Court did
not address whether Petitioner may attack his current
conviction on the ground that it was enhanced by a
prior, allegedly unconstitutional, state conviction.
Many federal circuits have answered this question left
open by the Supreme Court in the affirmative. See
Smith v. Farley, 25 F.3d 1363, 1365-66 (7th Cir. 1994);
Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992);
Allen v. Collins, 924 F.2d 88, 89 (5th Cir. 1991). In
a recent decision, the Sixth Circuit recognized that
these circuit court decisions were effectively
overruled by the Supreme Court's decision in Daniels v.
United States, 532 U.S. 374, 121 S. Ct. 1578, 149 L.
Ed. 2d 590 (2001) and Lackawanna County District
Attorney v. Coss, 532 U.S. 394, 121 S. Ct. 1567, 149 L.
Ed. 2d 608 (2001) . . . . See Steverson v. Summers,
No. 99-5694, 2001 WL 830452, slip op at 5-6 (6th Cir.
July 25, 2001) (to be reported as 258 F.3d 520).
The Supreme Court decisions in Daniels and Coss bar a
prisoner from challenging a prior, expired conviction,
by bringing a federal habeas action attacking a current
sentence that was enhanced by a prior conviction:
More important for our purposes here is the
question we explicitly left unanswered in
Maleng: "the extent to which the [prior
expired] conviction itself may be subject to
challenge in the attack upon the [current]
senten[ce] which it was used to enhance."
490 U.S. at 494, 109 S. Ct. 1923, 104 L. Ed.
2d 540. We encountered this same question in
the § 2255 context in Daniels v. United
6

States, 532 U.S. at ----, 121 S. Ct. 1578,
149 L. Ed. 2d 590. We held there that "[i]f
. . . a prior conviction used to enhance a
federal sentence is no longer open to direct
or collateral attack in its own right because
the defendant failed to pursue those remedies
while they were available (or because the
defendant did so unsuccessfully), then that
defendant . . . may not collaterally attack
his prior conviction through a motion under §
2255." Id., at ----, 532 U.S. 374, 121 S.
Ct. 1578, 1583, 149 L. Ed. 2d 590. We now
extend this holding to cover § 2254 petitions
directed at enhanced state sentences.
Coss, 121 S. Ct. at 1573.
Garrison v. Wolfe, No. 1:01-cv-531, 2007 WL 851881, *1-2 (W.D.
Mich. Mar. 20, 2007).

These cases make clear that Shrader cannot

bring a federal habeas petition to collaterally attack his longexpired 1976 state court convictions.
Of particular concern to the Court was the need for
finality:
We grounded our holding in Daniels on considerations
relating to the need for finality of convictions and
ease of administration. Those concerns are equally
present in the § 2254 context. The first and most
compelling interest is in the finality of convictions.
Once a judgment of conviction is entered in state
court, it is subject to review in multiple forums. . .
.
* * *
A defendant may choose not to seek review of his
conviction within the prescribed time. Or he may seek
review and not prevail, either because he did not
comply with procedural rules or because he failed to
prove a constitutional violation. In each of these
situations, the defendant’s conviction becomes final
and the State that secured the conviction obtains a
strong interest in preserving the integrity of the
7

judgment. . . . Other jurisdictions acquire an
interest as well, as they may then use that conviction
for their own recidivist sentencing purposes, relying
on “the `presumption of regularity’ that attaches to
final judgments.” Parke v. Raley, 506 U.S. 20, 29, 113
S. Ct. 517, 121 L. Ed. 2d 391 (1992). . . .
An additional concern is ease of administration of
challenges to expired state convictions. Federal
courts sitting in habeas jurisdiction must consult
state court records and transcripts to ensure that
challenged convictions were obtained in a manner
consistent with constitutional demands. As time
passes, and certainly once a state sentence has been
served to completion, the likelihood that trial records
will be retained by the local courts and will be
accessible for review diminishes substantially.
Coss, 532 U.S. at 402-03.

This need for finality is especially

evident here where Shrader is seeking to challenge convictions
obtained more than forty years ago.

For all these reasons,

Shrader’s objections are OVERRULED.2
Given the court’s conclusion that Shrader may not seek to
invalidate his state court convictions in this court pursuant to
Maleng, Daniels, and Coss, the court does not reach the other
objections to the PF&R which were directed to the alternative
reasons discussed in the PF&R as to why this matter should be
dismissed.

2

Shrader asks this court to “ORDER the State of West
Virginia to vacate Shrader’s 1976 convictions.” ECF No. 10 at p.
11. The court does not address the additional reasons why
Shrader may not proceed under 28 U.S.C. § 2241. Furthermore, as
the PF&R makes clear, there is currently pending in this court a
separate action challenging his ACCA enhancement under 28 U.S.C.
§ 2255. ECF No. 9 at p.3 fn.4.
8

Based on the foregoing, 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 DISMISSES plaintiff’s

petition 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.”
2253(c)(2).

28 U.S.C. §

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.

9

IT IS SO ORDERED this 17th day of January, 2019.
ENTER:
David A. Faber
Senior United States District Judge

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