Skinner v. Maruka
Filing
11
MEMORANDUM OPINION AND ORDER: The court OVERRULES petitioner's objections; ADOPTS the 7 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; DENIES petitioner's 1 Petition for Writ of Habeas Corpus (2241); DENIES petitioner's 3 Petition for Emergency Writ of Habeas Corpus Ad Subjiciendum; DENIES petitioner's 6 Petition for Writ of Habeas Corpus Ad Testificandum; DISMISSES this action and directs the Clerk to remove this case from the court's active docket. The court denies a certificate of appealability. Signed by Senior Judge David A. Faber on 9/25/2020. (cc: counsel of record and any unrepresented parties) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JESSE MANUEL SKINNER,
Petitioner,
v.
CIVIL ACTION NO. 1:19-00528
WARDEN C. MARUKA,
Respondent.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Aboulhosn submitted to
the court his Proposed Findings and Recommendation (“PF&R”) on
April 27, 2020, in which he recommended that the court deny
petitioner’s petition for writ of habeas corpus, deny
petitioner’s “Petition for Emergency Writ of Habeas Corpus Ad
Subjiciendum Pursuant to Title § 28 U.S.C. §§ 1331, 1657, 2241,
2255(f),” deny petitioner’s “Writ of Habeas Corpus Ad
Testificandum Seeking Order from this Court to Conduct Hearing
and/or Forthwith Grant Writ of Habeas Corpus Ad Subjiciendum and
Order Petitioner released from Unlawful Custody As Law and
Justice Requires and/or Release Petitioner on Bail Pending
Adjudication of Instant Habeas Proceeding,” and remove this case
from the court’s active docket.
(See ECF No. 7.)
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days and three mailing days in
which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation.
The failure of any party to file
such objections within the time allowed constitutes a waiver of
such party’s right to a de novo review by this court.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).
Snyder v.
Petitioner timely
filed objections.
I.
Factual Background
Magistrate Judge Aboulhosn’s PF&R chronicles the history of
petitioner’s conviction, sentencing, and efforts to obtain postconviction relief (including his four previous motions under 28
U.S.C. § 2255).
To summarize, after a seven-day trial in the
United States Court for the Southern District of Mississippi, a
jury convicted petitioner of nine counts:
two of them for the
offense of assault on law enforcement and the rest for various
drug-related and firearms-related offenses.
On February 17, 2004, the district court sentenced
petitioner to “[i]mprisonment for a total term of 480 months as
to each of Counts 4 and 5; terms of 240 months as to each of
Counts 1, 2, and 12; and terms of 120 months as to Counts 9 and
11, to be served concurrently.”
(ECF No. 7.)
The district
court further ordered that petitioner “be imprisoned for a term
of 60 months as to each of Counts 7 and 8, with each term
2
running concurrently to each other and consecutively to the
terms of imprisonment imposed in Counts 1, 2, 4, 5, 9, 11, and
12.”
(Id.)
Over ten years after petitioner’s original
sentencing, the district court reduced petitioner’s sentence to
a total term of 420 months, upon petitioner’s motion.
Between October 27, 2006, and March 26, 2020, petitioner
filed four motions under 28 U.S.C. § 2255. 1
Petitioner has twice
sought permission to file successive § 2255 petitions, and the
Fifth Circuit has denied such permission each time.
filed this petition under § 2241 on July 18, 2019.
Petitioner
Petitioner
added nearly 100 pages to the docket with his arguments.
Despite the difficulty deciphering the barrage of largely
irrelevant statements that span these pages, Magistrate Judge
Aboulhosn’s PF&R succinctly summarizes petitioner’s claims.
Essentially, petitioner argues that, under his reading of the
Constitution, and in light of alleged procedural errors with a
search warrant issued against him, the Southern District of
Mississippi never had jurisdiction over his case; therefore, his
criminal conviction is void.
Petitioner states that he
“proceeds under §§2241.” (ECF No. 6, at 2.) and demands that he
“be forthwith released from unlawful custody,” (Id. at 47.), but
The total comes to five counting this petition, which
petitioner filed under 28 U.S.C. § 2241, but which must be
construed as a motion under § 2255.
1
3
he does not attempt to fit his case within the savings clause of
§ 2255(e) or make any nonfrivolous argument for why § 2255(e)
does not apply to him.
II.
Petitioner’s Objections 2
Petitioner first objects that the PF&R does not liberally
construe his petition.
Second, petitioner objects to the PF&R’s construing his
petition as one under 28 U.S.C. § 2255, arguing that because he
challenges only his “commitment and detention,” as referenced in
§ 2242, and not his “sentence” under § 2255, he may proceed
under § 2241.
He seems to suggest that if he does not
explicitly challenge the specific terms of his sentence, he can
use § 2241 to seek immediate release from prison notwithstanding
the remaining term of his sentence.
Third, petitioner objects to the PF&R as dilatory.
More
specifically, he suggests that a ten-month timeline “reduce[s
the] writ of habeas corpus to [a] sham” and states that there
was a “lackadaisical approach to this most pressing unlawful
matter.”
(ECF No. 10, at 4.).
He objects to what he calls “the
Magistrate’s blatant disregard for Skinner’s due process rights
[in] waiting nearly ten months before coming forth with his
Because petitioner sometimes states more than one objection per
heading, and because the same objection sometimes appears under
more than one heading, the following order does not necessarily
correspond to petitioner’s numbered headings.
2
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bogus assessment of the instant Section 2241 Petition.”
(ECF
No. 10, at 6.)
Fourth, petitioner objects to the PF&R’s not acknowledging
28 U.S.C. § 2243, which he characterizes as “controlling.”
No. 10, at 4.)
(ECF
After quoting the first paragraph of § 2243, he
suggests that there are only two options when a court receives a
habeas petition:
cause.
grant the writ or order the respondent to show
“Section 2243,” he says, “is very direct and simple.”
(ECF No. 10, at 5.)
Fifth, petitioner next objects to the following statement
from the PF&R: “The Court notes that Section 2241 is merely a
general grant of habeas corpus authority.”
(ECF No. 7, at 10.)
Specifically, he takes exception with the word “merely.”
He
asserts that use of this word in relation to the writ of habeas
corpus is “borderline treasonous” and that “it would be no
different for the Magistrate to say Article III is just ‘merely’
a general grant of judicial authority written on a piece of
parchment.”
(ECF No. 10, at 9.)
Sixth, petitioner argues that he can proceed under § 2241
because his remedy under § 2255 is “‘inadequate and ineffective’
. . . to test the validity of the ‘search warrant’” that he
claims was defective.
ECF No. 10, at 10.
Seventh, petitioner objects to the PF&R’s construing his
petition as a challenge to the validity of his sentence.
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He
disagrees with the PR&R’s statement that “[e]ssentially,
Petitioner challenges the validity of his conviction and
sentence.”
(ECF No. 7, at 11.)
Petitioner does not object with specificity to any other
elements of the PF&R.
III. Standard of Review of Pro Se Objections
Pursuant to Fed. R. Civ. P. 72(b), the court must “make a
de novo determination upon the record . . . of any portion of
the magistrate judge's disposition to which specific written
objection has been made.”
However, the court is not required to
review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions
of the findings or recommendation to which no objections are
addressed.
See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).
Furthermore, de novo review is not required and is unnecessary
“when a party 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, 47–48 (4th Cir. 1982); see also United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for
appeal an issue in a magistrate judge's report, a party must
object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.”); McPherson v.
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Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure
to file a specific objection constitutes a waiver of the right
to de novo review.”).
“A document filed pro se is ‘to be liberally construed.’”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Specifically as to objections
to a PF&R, courts are “under an obligation to read a pro se
litigant’s objections broadly rather than narrowly.”
Beck v.
Comm’r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
However, objections that are “unresponsive to the reasoning
contained in the PF&R” are irrelevant and must be overruled.
Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,
2009) (citing Orpiano, 687 F.2d at 47).
IV.
Discussion
A.
Objection to Lack of Liberal Construction
Although the PF&R does not explicitly say that it liberally
construed petitioner’s petition, upon review of the record and
the PF&R as a whole, it is clear that the PF&R did indeed use
the liberal standard that is to be applied to pro se pleadings.
Not counting exhibits, petitioner filed nearly one hundred pages
in support of his petition, and the PF&R goes to great lengths
to extrapolate meaning from these pages.
Moreover, as noted
above, this court will also apply a liberal standard of
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construction to petitioner’s petition, documents in support
thereof, and objections to the PF&R.
B.
Objection to Construing Petition As One under § 2255
Petitioner relies on 28 U.S.C. § 2243 and his own denial
that he is challenging his sentence to argue that his petition
may proceed under § 2241.
He claims that § 2243 is
“controlling” and allows him to use to § 2241 to challenge his
“commitment and detention” without challenging the validity of
his sentence.
Petitioner is wrong.
“[I]t is well established that defendants convicted in
federal court are obliged to seek habeas relief from their
convictions and sentences through § 2255. See In re Vial, 115
F.3d 1192, 1194 (4th Cir.1997) (en banc). It is only when
Ԥ 2255 proves inadequate or ineffective to test the legality of
detention,’ that a federal prisoner may pursue habeas relief
under § 2241.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.
2010)(emphasis added).
The remedy under § 2241 is not an
additional, alternative or supplemental remedy to that
prescribed under § 2255.
“A federal prisoner who seeks to
challenge the legality of his conviction or sentence generally
must proceed pursuant to § 2255, while § 2241 petitions are
reserved for challenges to the execution of the prisoner’s
sentence.
Farrow v. Revell, 541 F. App'x 327, 328 (4th Cir.
2013).
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Petitioner appears not to understand that his demand “to be
released from unlawful custody” (ECF No. 10, at 18) necessarily
implicates a challenge to the validity of his conviction and
sentence.
Because petitioner is incarcerated pursuant to a
sentence of imprisonment, he cannot argue that his incarceration
is unlawful without also arguing that his sentence is unlawful.
Petitioner’s argument that he challenges one but not the other
is like admitting that he filed his petition in the Southern
District of West Virginia but disputing whether he filed it
within the bounds of the Fourth Circuit.
In other words,
petitioner’s argument for why he can sidestep § 2255 rests on a
logical impossibility.
Petitioner’s confusion may come from a misunderstanding as
to what a challenge to a sentence is.
His conception of a
challenge to a “sentence” appears to be limited to a challenge
to the specific terms of a sentence or an irregularity in a
sentencing hearing.
He states that “[a]ny jurist of reason can
rationally conclude that an improper search warrant would not
have anything to do with the sentencing phase.”
10.)
(ECF No. 10, at
Petitioner erroneously seems to believe that by attacking
the allegedly defective search warrant that led to his
conviction and sentence, he can establish the unlawfulness of
his confinement without challenging his conviction or sentence.
He later concedes that if he were “challenging a sentencing
9
issue via a § 2241 claim, the Magistrate would have every right
to dismiss or construe the Petition as a Section 2255.”
(ECF
10, at 7.)
Despite Petitioner’s unsupported contentions to the
contrary, his claim of a defective warrant goes to the
underlying validity of his conviction and sentence.
Therefore,
in view of the nature of his claims, his application must be
considered a Motion to Vacate, Set Aside or Correct his sentence
under § 2255.
Petitioner also seems to suggest that § 2255 is only for
challenges to his “guilt or innocence,” which he is not
challenging.
(ECF No. 10, at 2).
Petitioner is wrong.
Challenges under § 2255 do not necessarily involve “guilt or
innocence.”
For example, § 2255 provides that it may be used to
argue “that the court was without jurisdiction to impose such
sentence.”
28 U.S.C. § 2255.
Thus, petitioner’s objection to the PF&R’s construing his
petition as a challenge under § 2255 lacks merit and is
OVERRULED.
C.
Objection to the PF&R As Dilatory
Petitioner’s objection to the PF&R as dilatory lacks merit.
Petitioner cites 28 U.S.C. § 1657 for the proposition that
habeas petitions are to be expedited, but he identifies no
authority to support his assertion that there was undue delay
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with his petition.
Neither does he identify any authority to
show that these are proper grounds upon which to object to a
PF&R.
This objection is OVERRULED.
D.
Objection to the Lack of Citation to § 2243
This objection lacks merit because it contradicts the plain
text of § 2243.
First, petitioner’s analysis ignores the full
text of this section.
The first paragraph of this section
provides as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
28 U.S.C. § 2243 (emphasis added).
Petitioner’s contention that
courts must act to grant the writ or order the respondent to
show cause completely ignores the text, which provides that
neither of these actions is necessary if, as here, the
petitioner is not entitled to habeas relief.
As the Fourth
Circuit has explained, ”[T]he court or judge has a primary duty
of determining, upon the face of the facts stated in the
petition, whether the prisoner is entitled to the writ [of
habeas corpus].
Unless the petition itself affirmatively shows
this, it is incumbent upon the court to dismiss the petition,
and to refrain from issuing the writ.”
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Slaughter v. Wright, 135
F.2d 613, 615 (4th Cir. 1943).
This objection is OVERRRULED.
E.
Objection to the Use of the Word “Merely”
Petitioner misreads the PF&R to downplay the importance of
the writ of habeas corpus.
The PF&R says that “Section 2241 is
merely a general grant of habeas corpus authority.” (ECF No. 7,
at 10 (emphasis added).)
In juxtaposition, the very next
sentence speaks of more specific grants of habeas authority.
Petitioner takes offense only by misreading the sentence to say,
for example, “Section 2241 is a general grant of mere habeas
corpus authority.”
There is no disparagement of the writ of
habeas corpus as written.
Petitioner’s objection lacks merit. 3
This objection is OVERRRULED.
F.
Objection that § 2255 is Inadequate or Ineffective
Petitioner objects to the PF&R’s conclusion that he cannot
proceed under § 2241 by claiming that § 2255 is inadequate and
ineffective.
His argument is that § 2255 applies only to a
challenge to his sentence, while § 2241 applies to a challenge
to his detention.
He states his claim is based on his recent
discovery that a search warrant relating to his case was not
properly signed.
As explained above, this argument lacks merit
and appears to proceed on a fundamental misunderstanding of what
As does his suggestion that the PF&R is “borderline
treasonous.” (ECF No. 10, at 9.)
3
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a challenge to a sentence is.
Petitioner implies that, because his challenge is to the
jurisdiction of the district court over his criminal case, it
cannot be brought as a § 2255 petition, so § 2255 is inadequate
or ineffective, and the savings clause of § 2255(e) applies.
Petitioner makes no attempt, however, to explain how his
case falls within either of the savings clause tests that the
Fourth Circuit set forth in In re Jones, 226 F.3d 328 (4th Cir.
2000) and United States v. Wheeler, 886 F.3d 415, 420 (4th Cir.
2018).
“The savings clause provides that an individual may seek
relief from an illegal detention by way of a traditional 28
U.S.C. § 2241 habeas corpus petition, if he or she can
demonstrate that a § 2255 motion is ‘inadequate or ineffective
to test the legality of his detention.’ 28 U.S.C. § 2255(e).”
Wheeler, 886 F.3d at 419.
To meet the savings clause exception for a challenge to the
validity of a conviction, a petitioner's claim must meet the
following three conditions:
(1) at the time of conviction,
settled law of this circuit or the Supreme Court established the
legality of the conviction; (2) subsequent to the prisoner's
direct appeal and first § 2255 motion, the aforementioned
substantive law changed such that the conduct of which the
petitioner was convicted is deemed not to be criminal; and (3)
the prisoner is unable to meet the gatekeeping provisions of §
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2255(h)(2) for second or successive motions because the new rule
is not one of constitutional law.
Jones, 226 F.3d at 333-34 &
n.3.
Petitioner bears the burden of establishing that he
satisfies all three Jones savings clause criteria.
Tillman v.
Rickard, No. CV 1:18-01244, 2020 WL 1548057, at *3 (S.D.W. Va.
Mar. 31, 2020), aff’d, 813 F. App’x 125 (4th Cir. 2020).
The
fact that relief under § 2255 is barred procedurally or by the
gatekeeping requirements of § 2255 does not render the remedy of
§ 2255 inadequate or ineffective. See Jones, 226 F.3d at 332-33;
Young v. Conley, 128 F. Supp.2d 354, 357 (S.D.W. Va. 2001); see
also Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir.
2002) (“It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.
Section 2255 is not
inadequate or ineffective merely because the sentencing court
does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.”) (citations
omitted).
“The remedy provided under Section 2255(e) opens only
a narrow door for a prisoner to challenge the validity of his
conviction or sentence under Section 2241.”
Hayes v. Ziegler,
No. 5:11-CV-00261, 2014 WL 670850, at *6 (S.D.W. Va. Feb. 20,
2014), aff’d, 573 F. App’x 268 (4th Cir. 2014).
Petitioner’s objection lacks sufficient specificity for the
14
court to address it, and a de novo review of the PF&R’s savings
clause analysis reveals no error.
This objection is OVERRRULED.
G.
Objection to the Conclusion that Petitioner Challenges
His Sentence
Petitioner objects to the conclusion that his petition
constitutes a challenge to the validity of his sentence.
He
disagrees with the PR&R’s statement that “[e]ssentially,
Petitioner challenges the validity of his conviction and
sentence.”
(ECF No. 7, at 11.)
For the reasons explained
above, this objection lacks merit.
This objection is OVERRRULED.
V.
Conclusion
The court has reviewed the record, the Magistrate Judge’s
findings and recommendations, and petitioner’s objections. For
the foregoing reasons, petitioner’s objections are OVERRULED.
The court adopts the Findings and Recommendation of Magistrate
Judge Aboulhosn as follows:
1.
Petitioner’s petition for writ of habeas corpus under
28 U.S.C. § 2241 is DENIED;
2.
Petitioner’s “Petition for Emergency Writ of Habeas
Corpus Ad Subjiciendum Pursuant to § Title 28 U.S.C.
§§ 1331, 1657, 2241, 2255(f)” is DENIED;
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3.
Petitioner’s petition for “Writ of Habeas Corpus Ad
Testificandum Seeking Order from this Court to Conduct
Hearing and/or Forthwith Grant Writ of Habeas Corpus
Ad Subjiciendum and Order Petitioner released from
Unlawful Custody As Law and Justice Requires and/or
Release Petitioner on Bail Pending Adjudication of
Instant Habeas Proceeding” is DENIED;
4.
This action is DISMISSED; and
5.
The Clerk is directed to remove this case 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).
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 counsel of record and
unrepresented parties.
IT IS SO ORDERED this 25th day of September, 2020.
ENTER:
David A. Faber
Senior United States District Judge
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