Key v. United States of America

Filing 24

MEMORANDUM OPINION AND ORDER Affirming And Adopting 22 Report And Recommendation of Mag Judge, Granting 15 Motion to Transfer Case and DISMISSING CASE. Signed by Senior Judge Frederick P. Stamp, Jr on 8/18/11. (c to pet by certified mail, electronic transfer to SDWV)(mji) [Transferred from West Virginia Northern on 8/18/2011.]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JERRY LEE KEY,
Petitioner,
v.

Civil Action No. 5:11CV11
(STAMP)

TERRY O’BRIEN, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

Jerry Lee Key, the petitioner in the above-styled civil
action, filed a pro se1 petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.

On June 30, 1997, the petitioner

pled guilty to the offense of possession of a firearm by a
convicted felon in the Southern District of West Virginia.

The

indictment further alleged a violation of the Armed Career Criminal
Act (“ACCA”).
unlawful

The named prior convictions were two counts of

wounding

and

two

instances

of

felony

escape.

The

petitioner was sentenced to 210 months imprisonment, to be followed
by a term of five years of supervised release.

The petitioner

appealed his sentence, arguing that his first conviction for felony
escape was based on a failure to return to the work release center

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

and could not be considered a violent felony.

The United States

Court of Appeals for the Fourth Circuit affirmed the petitioner’s
sentence on April 22, 2008.

The petitioner filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2255 on September 14,
1999.

The Southern District of West Virginia denied his motion to

vacate, set aside, or correct sentence, which the Fourth Circuit
affirmed.

The petitioner also filed petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 in the Eastern District of
California on June 7, 2010, which the court dismissed.
The petitioner filed the present petition on January 24, 2011.
In his petition, the petitioner alleges that his sentence was
improperly enhanced pursuant to the ACCA.

The petitioner seeks a

resentencing pursuant to 18 U.S.C. § 924(a)(2) and that his time
served in excess of the statutory minimum of ten years be credited
toward his term of supervised release, which it appears that the
petitioner has begun to serve.
The civil action was referred to United States Magistrate
Judge John S. Kaull for report and recommendation pursuant to Local
Rule of Prisoner Litigation Procedure 2.

The respondent filed a

motion to transfer case in response to a show cause order issued by
the magistrate judge.

In his response, the petitioner urged the

magistrate judge to construe his petition under the All Writs Act
as a writ of error coram nobis and that his civil action be
transferred to the Southern District of West Virginia.

2

The

magistrate judge entered a report and recommendation, recommending
that the respondent’s motion to transfer be granted and that the
petitioner’s petition in his civil action be construed as a
petition for a writ of error coram nobis and transferred to the
Southern District of West Virginia.

The magistrate judge advised

the parties that, pursuant to 28 U.S.C. § 636(b)(1)(C), any party
may

file

written

objections

to

his

proposed

findings

and

recommendations within fourteen days after being served with a copy
of the magistrate judge’s recommendation.

Neither party filed

objections.
II.

Legal Standard

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

judge’s

recommendation to which objection is timely made. However, failure
to file objections to the magistrate judge’s proposed findings and
recommendation

permits

the

district

court

to

review

the

recommendation under the standards that the district court believes
are appropriate and, under these circumstances, the parties’ right
to de novo review is waived.
825

(E.D.

Cal.

1979).

See Webb v. Califano, 468 F. Supp.

Because

the

petitioner

did

not

file

objections, this Court reviews the report and recommendation of the
magistrate judge for clear error.

3

III.

Discussion

In Chambers v. United States, 555 U.S. 122 (2009), the Supreme
Court found that the crime of failing to report did not qualify as
a crime of violence under the ACCA.

The Fourth Circuit has

similarly held since Chambers that “the generic crime of walk-away
escape from an unsecured facility does not qualify as a ‘crime of
violence’ under the career offender Sentencing Guidelines.” United
States v. Clay, 627 F.3d 959, 969 (4th Cir. 2010).

The magistrate

judge correctly notes that these cases reflect a substantive change
of law which may demonstrate that the petitioner’s first conviction
for felony escape is no longer a crime of violence.

This Court

finds no clear error in the magistrate judge’s conclusion that the
petitioner cannot satisfy the gate-keeping requirements of 28
U.S.C. § 2255, but that the petitioner satisfies the savings clause
of 28 U.S.C. § 2241.
A court may issue a writ of error coram nobis pursuant to the
All Writs Act, 28 U.S.C. § 1651, “to vacate a conviction when there
is a fundamental error resulting in conviction, and no other means
of relief is available.”

In re McDonald, 88 F. App’x 648, 649 (4th

Cir. 2004) (unpublished) (citing United States v. Morgan, 346 U.S.
502, 509-11 (1954)).

The writ of error coram nobis is “properly

viewed as a belated extension of the original proceeding during
which the error allegedly transpired.”
129 S. Ct. 2213, 2221 (2009).

United States v. Denedo,

The availability of this writ is

4

limited to “extraordinary cases presenting circumstances compelling
its

use

to

available.

achieve

justice”

and

where

habeas

corpus

Id. at 2220 (internal citations omitted).

is

not

Further, a

writ of error coram nobis is available only when the applicant is
not incarcerated. United States v. Johnson, 237 F.3d 751, 755 (6th
Cir. 2001).
Courts have transferred petitions filed pursuant to 28 U.S.C.
§ 2241 to the district of conviction using the All Writs Act, 28
U.S.C. § 1651.

In re Nwanze, 242 F.3d 521, 526-27 (3d. Cir. 2001).

The magistrate judge is correct that the petitioner could not have
filed his petition in the Southern District of West Virginia, but
that he could have filed a petition for a writ of error coram nobis
in that district.
Because the original sentencing court is the preferred forum
for addressing the merits of a claim which attacks the validity of
a conviction, this Court will grant the respondent’s motion to
transfer this civil action to the Southern District of West
Virginia. This Court notes that it is the decision of the Southern
District of West Virginia whether to address the merits of the
petitioner’s claims.
IV.

Conclusion

This Court finds that the magistrate judge’s recommendation is
not clearly erroneous and hereby AFFIRMS and ADOPTS the report and
recommendation

of

the

magistrate

5

judge

in

its

entirety.

Accordingly, the petitioner’s petition filed in his civil case is
CONSTRUED as a petition for a writ of error coram nobis and the
respondent’s motion to transfer is GRANTED.

It is ORDERED that

this civil action be DISMISSED and STRICKEN from the active docket
of this Court.
Under Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985),
the petitioner’s failure to object to the magistrate judge’s
proposed findings and recommendation bars the petitioner from
appealing

the

judgment

of

this

Court

with

respect

to

the

petitioner’s petition filed in his civil case.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to the
pro se petitioner by certified mail and to the Clerk of the United
States District Court for the Southern District of West Virginia.
The Clerk is further DIRECTED to TRANSFER this case to the United
States District Court for the Southern District of West Virginia.
DATED:

August 18, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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