Trevor Little v. United States of America

Filing 664

ORDER as to Trevor Little; adopting the 647 Proposed Findings and Recommendation; dismissing petitioner's 642 Motion to Vacate, Set Aside or Correct Sentence (2255); the 661 Motion to hold this case in abeyance pending the outcome of two Supreme Court decisions is DENIED. Signed by Judge Thomas E. Johnston on 8/1/2011. (cc: petitioner; attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TREVOR LITTLE,
Movant,
v.

CIVIL ACTION NO. 2:10-cv-00978
(Criminal No. 2:95-cr-00198-02)

UNITED STATES OF AMERICA,
Respondent.

ORDER
Before the Court is Petitioner Trevor Little’s Motion to Vacate, Set Aside, or Correct
Sentence [Docket 642]. By Standing Order entered August 1, 2006, and filed in this case on August
4, 2010, this action was referred to United States Magistrate Mary E. Stanley for submission of
proposed findings and a recommendation (PF&R). Magistrate Judge Stanley filed a PF&R [Docket
647] on September 14, 2010, recommending that this Court dismiss Petitioner’s motion.
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. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely
objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this Court’s
Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct
a de novo review 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 (4th Cir. 1982). Objections to the PF&R in this case were due on October 1, 2010.
Petitioner filed objections on September 30, 2010. (Docket 150.)1
Magistrate Judge Stanley recommended that the Court dismiss the instant petition because
Petitioner has not obtained a certificate of appealability to file a second and successive habeas
motion from the United States Court of Appeals for the Fourth Circuit as required by 28 U.S.C. §
2255(h). Petitioner objects that his 28 U.S.C. § 2255 petition presents “an extraordinary issue which
is outside the time and criteria barrier for filing a second or successive § 2255 motion.” (Docket 650
at 1.)2 As Petitioner has not obtained a certificate of appealability from the Fourth Circuit as
required by 28 U.S.C. § 2255(h), this Court lacks subject matter jurisdiction over this action and it
must be dismissed. See United States v. Winestock, 340 F.3d 200, 205 (4th Cir.2003). Accordingly,
Petitioner’s objection is OVERRULED.

1

The Court notes that there are several outstanding motions related to the instant § 2255 petition
pending on both the civil, 2:10-cv-00978, and criminal, 2:10-cr-00198-02, dockets of this case. On
the civil and criminal dockets, Petitioner filed a motion to hold this case in abeyance pending the
outcome of two Supreme Court decisions [Docket 661] which is now DENIED. On the criminal
docket, Petitioner filed two identical motions [Docket 641 and 648] containing argument concerning
his § 2255 petition, a motion for immediate release [Docket 649] also related to his § 2255 petition,
a motion to have the probation officer correct irregularities in his PSR [Docket 651] that is also
related to his § 2255 petition, and a motion to amend his § 2255 petition to correct a typographical
error [Docket 656]. As the substance of these motions is resolved by this Opinion, Petitioner’s
motions [Dockets 641, 648, 649, 651, and 656] are hereby DENIED.
2

The basis for Petitioner’s § 2255 motion is a request to be re-sentenced with the benefit of the Fair
Sentencing Act of 2010 (FSA). The FSA is not retroactive. See United States v. Bullard, --- F.3d
----, No. 09-5214, 2011 WL 1718894, at *10 (4th Cir. May 6, 2011). Of course, Petitioner may seek
relief under 28 U.S.C. § 3582(c)(2) based on the retroactive application of the guidelines amended
as a result of the FSA.
2

For the reasons noted above, the Court ADOPTS the PF&R [Docket 647] and DISMISSES
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence [Docket 642]. A separate Judgment
Order is entered this day implementing the findings contain herein.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

August 1, 2011

_________________________________________
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE

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