Gadd v. United States of America

Filing 11

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 6 Proposed Findings and Recommendations by Magistrate Judge Cheryl A. Eifert; DENIES as moot plaintiff's 1 Motion to Proceed Without Prepayment of Fees and Costs and 1 Motion for Appointme nt of Counsel, and 5 Motion for Ruling on Section 2241 Petition; DENIES plaintiff's 9 Motion to Strike the Proposed Findings and Recommendations; DENIES plaintiff's 2 Section 2241 Petition as a second, successive and unauthorized moti on made pursuant to 28 U.S.C. § 2255; and DISMISSES this action, with prejudice, and removes it from the docket of the court. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 3/28/2019. (cc: plaintiff, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
WILLIAM S. GADD,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-cv-00408

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge Cheryl A. Eifert for submission of
proposed findings and recommendations (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 6).
Magistrate Judge Eifert submitted to the court her PF&R on
August 9, 2019, in which she recommended that the Court deny the
plaintiffs’ motions as moot, deny the plaintiff’s petition as a
second, successive and unauthorized motion made pursuant to 28
U.S.C. § 2255; and that this action be dismissed, with
prejudice, and removed from the docket of the court. (ECF Nos.
1, 5).
In accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to
Magistrate Judge Eifert’s PF&R.

The failure of any party to

file such objections within the time allotted 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).

The

plaintiff submitted objections (ECF NO. 10) and filed a Motion
to Strike (ECF No. 9).

The court reviews the plaintiff’s

objections below.
I.

Discussion
a. Underlying Claim

The petition brought his claim as a Writ of Habeas Corpus,
seeking the relief of correcting his presentence report.

(ECF

No. 2). The petition alleges that “[a]pproximately 10 points
used in the presentence report were used to enhance the
Petitioner’s sentence.

These items were never part of the

indictment or were any of the items presented at the trial.
Petitioner is presumed innocent of these items used to enhance
the Petitioner’s sentence.”

Id. at p. 2.

The plaintiff further

claims that his Fifth, Sixth, and Fourteenth Amendment rights
under the Construction were violated and that his presentence
report should be amended to reflect his concerns.

Id.

b. Objections
i. Plaintiff’s objection that the magistrate judge
lacks authority under 28 U.S.C. § 2243.
In the plaintiff’s objection, he challenges the authority of
the magistrate judge to make findings in the instant matter.
Furthermore, the plaintiff argues that because the defendant
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never answered his complaint, the magistrate judge has acted as
both an advocate and a district court judge.
2-3).

(ECF No. 10, pgs.

The court finds the plaintiff’s argument to be erroneous.
The jurisdiction and powers of magistrate judges is

codified in 28 U.S.C. § 636.

§ 636(b) states:

a judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the
court, except a motion for injunctive relief, for
judgment on the pleadings, for summary judgment, to
dismiss or quash an indictment or information made by
the defendant, to suppress evidence in a criminal
case, to dismiss or to permit maintenance of a class
action, to dismiss for failure to state a claim upon
which relief can be granted, and to involuntarily
dismiss an action. A judge of the court may reconsider
any pretrial matter under this subparagraph (A) where
it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.
a judge may also designate a magistrate judge to
conduct hearings, including evidentiary hearings, and
to submit to a judge of the court proposed findings of
fact and recommendations for the disposition, by a
judge of the court, of any motion excepted in
subparagraph (A), of applications for posttrial relief
made by individuals convicted of criminal offenses and
of prisoner petitions challenging conditions of
confinement.
the magistrate judge shall file his proposed findings
and recommendations under subparagraph (B) with the
court and a copy shall forthwith be mailed to all
parties.
Thus, under § 636(b), the magistrate judge had the
authority and jurisdiction to make findings and recommendations
and submit them to the court in the plaintiff’s case.

It is

irrelevant that the defendant did not reply to the plaintiff’s
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complaint. Accordingly, the court DENIES plaintiff’s motion to
strike the proposed findings and recommendations (ECF No. 9).
ii. Plaintiff’s objection that the magistrate judge
mischaracterized a federal habeas corpus action
as a motion under 28 U.S.C. § 2255.
The court finds that the magistrate judge was correct to
classify the plaintiff’s petition as a motion under 28 U.S.C. §
2255.

This section reads as follows:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
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, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255.
Here, the plaintiff is challenging the sentencing guideline
calculation.

Specifically, he argues that a 10-point increase

in his sentencing guideline calculations was erroneously based
upon facts not presented at trial or a part of his indictment.
Thus, he is challenging the validity of the sentence that was
imposed upon him.

This claim fits squarely within the purview

of 28 U.S.C. § 2255.
In his objections, the plaintiff points out that issues
reserved for motions under § 2255 may be raised in petitions for
habeas relief filed under § 2241.
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(ECF No. 10, p. 4).

However,

these circumstances are rare, and the plaintiff must first
satisfy the four elements set forth in United States v. Wheeler,
886 F.3d 415 (4th Cir. 2018).
The “savings clause,” found at 28 U.S.C. §2255(e), allows a
§2241 petition to take the place of a §2255 motion when “§2255
proves inadequate to test the legality of detention,” Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citations omitted).
To trigger the savings clause, a plaintiff challenging his
sentence must show that all of the following elements exist: (1)
at the time of sentencing, settled law of the circuit or the
Supreme Court established the legality of the sentence; (2)
subsequent to his direct appeal and first §2255 motion, the
aforementioned settled substantive law changed and was deemed to
apply retroactively on collateral review; (3) he cannot satisfy
the gatekeeping provisions of §2255(h)(2) for second or
successive motions; and (4) due to this retroactive change, the
sentence now presents an error sufficiently grave to be deemed a
fundamental defect.
(4th Cir. 2018).

United States v. Wheeler, 886 F.3d 415, 429

The plaintiff bears the burden of establishing

that a §2255 motion is inadequate or ineffective by satisfying
the Wheeler criteria.

See Hood v. United States, 13 Fed Appx.

72, 2001 WL 648636, at *1 (4th Cir. 2001); McGhee v. Hanberry,
604 F.2d 9, 10 (5th Cir. 1979); Hayes v. Zeigler, No. 5:11-cv00261, 2014 WL 670850 (S.D.W. Va. Feb 20, 2014).
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In his objections, the plaintiff claims that his complaint
set forth and satisfied the criteria in Wheeler.
p.6).

(ECF No. 10,

However, the court agrees with the magistrate judge (ECF

No. 6, p. 6) that plaintiff’s complaint never made such an
argument that § 2255 was inadequate or ineffective, nor did the
substantive law change to satisfy the Wheeler factors.

Thus,

the court finds that plaintiff failed to meet his requisite
burden.
Accordingly, the court finds that the petition’s complaint,
unequivocally challenging the validity of his sentence, not its
execution, is properly construed as a motion under 28 U.S.C. §
2255.

Thus, the court adopts the finding of the magistrate

judge that this court lacks the jurisdiction to consider a
second or successive motion filed under 28 U.S.C. § 2255 unless
the motion has been certified in advance by a panel of the
appropriate circuit court of appeals.

28 U.S.C. § 2255(h). 1

Therefore, the court finds it lacks jurisdiction to consider the
plaintiff’s motion.

In this case, plaintiff previously filed a § 2255 motion, which
related to the same conviction and sentence that he presently
challenges. His first § 2255 was denied on the merits, and
plaintiff has not received authorization from the Fourth Circuit
to proceed with a second or successive § 2255 motion.
1

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iii. Plaintiff’s objection that the magistrate judge
avoided the authority of Nelson v. Colorado.
In a memorandum in support of his petition, plaintiff
argues that the decision in Nelson v. Colorado, 137 S. Ct. 1249
(2017), effectively overruled United States v. Watts, 519 U.S.
148 (1997).

(ECF No. 4).

The plaintiff objects to the

magistrate judge’s conclusion that Nelson did not overrule Watts
because the Supreme Court in Nelson “did not touch on sentencing
considerations, sentencing guidelines, or relevant conduct in
sentencing” nor did the court mention Watts in the Nelson case.
In its independent review of Nelson and Watts, the court
finds that Nelson did not change substantive law as articulated
in Watts. 2
issues.

In fact the cases dealt with separate and distinct

Nelson stands for the proposition that a state statute

“requiring defendants whose convictions have been reversed or
vacated to prove their innocence by clear and convincing
evidence in order to obtain the refund of costs, fees, and
restitution paid pursuant to the invalid conviction” violates
due process.

Nelson, 137 S. Ct at 1266.

This holding is not

relevant or applicable to the plaintiff’s case.

Therefore, the

magistrate judge accurately determined that Nelson would not

“Sentencing court may consider conduct of which defendant has
been acquitted, so long as the conduct has been proved by
preponderance of evidence.” Watts, 519 U.S. at 157.
2

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apply on a collateral review to the issue raised by the
plaintiff.

(See ECF No. 6, p. 7).
iv. Plaintiff’s objection that Nelson did not
announce a new rule of criminal procedure.

Again, the plaintiff objects to the magistrate judge’s finding
that Nelson did not establish a new rule, and that it,
therefore, does not apply retroactively.

(ECF No. 10, pg. 10).

The plaintiff argues that “[t]he Supreme Court’s decision in
Nelson concluded that it was a violation of due process to
require defendants whose convictions had been invalidated [for
any reason], to prove their innocence by another standard yet
again, before their innocence was restored.”

Id.

The plaintiff fails to understand that the Nelson decision
deals specifically with an individual’s burden of proof when
seeking to obtain the refund of costs, fees, and restitution
paid pursuant to the invalid conviction.
1266.

Nelson, 137 S. Ct at

This holding has no bearing on settled law that the court

has the ability to “consider conduct of which defendant has been
acquitted, so long as the conduct has been proved by
preponderance of evidence.”

See Watts, 519 U.S. at 157.

this objection is without merit.

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Thus,

v. Plaintiff’s objection that there was is a
fundamental miscarriage of justice because of his
alleged actual innocence.
The court finds that the plaintiff’s objections to the
magistrate judge’s finding that “the magistrate judge has
misrepresented the facts and the law, for the purpose of denying
any relief” (ECF No. 10, p. 12) is without merit, because the
court agrees with the magistrate judge that Nelson, 137 S. Ct
1249, is inapplicable to the plaintiff’s claim.
vi. Plaintiff’s objection that there was cumulative
error.
Finally, the plaintiff objects to the magistrate judges
“appar[ant] conclu[sion] that this claim fails because it is not
based on clearly established U.S. Supreme Court law.”
10, p. 12).

(ECF No.

The court responds to this objection, however, that

the plaintiff’s claim is not successful primarily because it is
properly categorized as a motion under 28 U.S.C. § 2255, a
motion to vacate, set aside or correct sentence, which would
require authorization from the Fourth Circuit to proceed with a
second or successive § 2255 motion.

Furthermore, as previously

articulated, the “savings clause,” found at 28 U.S.C. §2255(e),
is inapplicable to the case at hand because the defendant failed
to meet his burden of demonstrating that a motion under § 2255
is inadequate or ineffective by satisfying the Wheeler criteria.

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II.

Conclusion

Having made a de novo review of the plaintiff’s complaint,
for the foregoing reasons, the court hereby DENIES the
plaintiff’s motions (ECF Nos. 1, 5) as moot, DENIES plaintiff’s
motion to strike the proposed findings and recommendations (ECF
No. 9); DENIES the plaintiff’s petition as a second, successive
and unauthorized motion made pursuant to 28 U.S.C. § 2255; and
DISMISSES this action, with prejudice, and removes it from the
docket of the court.
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.
court DENIES a certificate of appealability.

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Accordingly, the

The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to plaintiff pro se counsel of
record.
It is SO ORDERED this 28th day of March, 2019.
ENTER:
David A. Faber
Senior United States District Judge

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