Smith v. United States of America

Filing 153

MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATION: The Court ORDERS that Petitioner's Objections are OVERRULED. The Court lacks jurisdiction to consider Petitioner's Second or Successive Section 2255 Motion absent authorization by the appropriate Court of Appeals. Accordingly, the Court hereby ADOPTS and incoporates herein the findings and recommendation of the Magistrate Judge as contained in the 144 Proposed Findings and Recommendation, and ORDERS that Pe titioner's Section 2255 Motion (Documents 126 131 132 133 ) be DENIED. The Court DENIES a certificate of appealability. The Clerk is directed to remove the instant matters from the docket. Signed by Judge Irene C. Berger on 7/30/2012. (cc: attys; any unrepresented party) (msa)

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

JAMES PRESTON SMITH,
Petitioner,
v.

CIVIL ACTION NO. 5:09-cv-01257
(Criminal No. 5:99-cr-00161)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
ADOPTING PROPOSED FINDINGS AND RECOMMENDATION
On this day, the Court has reviewed the following submissions by Petitioner in this civil
action which are titled: Petitioner’s “FRE 201 (Judicial Notice) 28 U.S.C. 1333 S&S Civil 28 U.S.C.
§ 1331 Federal Question” (Document 126); “Pursuant to 28 U.S.C.§ 2255 28 U.S.C. 1333 Civil
Relief 60(b) Motion” (Document 131); “Pursuant to 28 U.S.C. § 2255 Memorandum of Law & 60(b)
Motion” (Document 132); “28 U.S.C. 2255 Default Motion Pursuant to USC 28 1333” (Document
133). By Standing Order entered on November 17, 2009, this action was referred to the Honorable
R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed
findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
(Document 128).
Magistrate Judge VanDervort has submitted his Proposed Findings and Recommendation
(“PF&R”) (Document 144), wherein the following findings were made: Petitioner, in his
submissions, challenges the validity of his conviction and the constitutionality of the felon in

possession statute; Petitioner has previously filed a Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255 in this district court; Petitioner’s claims that the felon in possession statute
violates the Second Amendment or the Commerce Clause of the United States Constitution are
procedurally barred as matters which were fully considered and rejected on his direct appeal; the
instant Section 2255 Motion is a successive proceeding under Section 2255, and Petitioner failed
to allege or demonstrate that he has obtained the necessary authorization from the Fourth Circuit
Court of Appeals for his successive motion. (PF&R at 8-11.) As a result, the Magistrate Judge
recommends that this Court dismiss Petitioner’s Section 2255 Motion as successive (Documents
126, 131, 132, 133) and remove this matter from the Court’s docket. (PF&R at 11.)
In the PF&R, the Magistrate Judge also advised Petitioner that he could file objections to his
recommendation. The Court has reviewed Petitioner’s timely submission. (Objections to Findings
and Recommendations Pursuant to the Magistrate Act (“Pet.’s Obj.”) (Document 145)). The Court
finds, for the reasons stated herein, that Petitioner’s objections should be overruled and the PF&R
should be adopted.

I.
On April 7, 2000, in this district, Petitioner pled guilty to possession of a firearm by a person
convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Thereafter, Petitioner
was sentenced to two hundred seven (207) months of imprisonment, to be followed by a five (5)year period of supervised release. Petitioner appealed his conviction challenging, among other
things, the constitutionality of the statute under which he was convicted, and contested the
applicability of the enhancements provided for by the Armed Career Offender Act. In an
unpublished per curiam opinion decided September 17, 2001, the United States Court of Appeals
2

for the Fourth Circuit affirmed Petitioner’s conviction and sentence. United States v. Smith, 18 F.
App’x 201 (4th Cir. 2001).

The Circuit Court concluded, inter alia, that Section 922(g)(1) does

not violate the Second Amendment or the Commerce Clause of the United States Constitution. The
Supreme Court of the United States denied Petitioner’s writ of certiorari on February 25, 2002.
Smith v. United States, 534 U.S. 1165 (2002).
On November 29, 2004, Petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody. (Smith v. United States, Civil Action No.
5:04-cv-1262). On December 22, 2005, Petitioner’s Section 2255 motion was dismissed as
untimely. Petitioner did not seek appellate review of the dismissal of his Section 2255 motion.
As stated in greater detail in the Magistrate Judge’s PF&R, Petitioner has unsuccessfully
engaged in extensive post-conviction litigation since the dismissal of his Section 2255 motion.
(PF&R at 2-8). In one of those cases, the assigned District Judge, the Honorable Thomas E.
Johnston, determined that a pre-filing injunction was appropriate for this Petitioner. (Smith v.
Hayden, Civil Action No.5:05-cv-0884, 2009 WL 1543910 (S.D. W. Va. June 2, 2009)). The June
2, 2009 determination was made after considering the applicable law for such injunctions and the
court having found that Petitioner had filed twenty (20) civil actions related to his guilty plea and
subsequent sentence, many of which were consolidated and dismissed as time-barred and/or without
merit.1

1

Specifically, the pre-filing injunction enjoined Petitioner:
from filing any actions in the United States District Court for the Southern District
of West Virginia without the representation of an attorney licenced to practice in
the State of West Virginia and admitted to practice in this Court, unless he has first
obtained leave of court to proceed pro se in forma pauperis on the grounds that he
is in imminent danger of serious physical injury, or unless he has paid the required
filing fee in full.

(continued...)
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II.
A. Standard of Review
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
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. Thomas v. Arn, 474 U.S. 140, 150 (1985). 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). When reviewing portions
of the PF&R de novo, the Court will consider the fact that Plaintiff is acting pro se, and his pleadings
will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead,
582 F.2d 1291, 1295 (4th Cir. 1978).

B. Applicable Law
The statutory framework for post-conviction relief from federal judgments of conviction is
found in Chapter 153 of Title 28 of the United States Code. A writ of habeas corpus pursuant to 28
U.S.C. § 2241 and a Motion to Vacate, Set Aside or Correct sentence pursuant to 28 U.S.C. § 2255

1

(...continued)
[The Court also directed the Clerk of Court] not to accept any additional filings
from James Preston Smith without the representation of at [sic] attorney as outlined
above, payment in full of the required filing fee, or a showing that he has obtained
leave of Court.

Smith, 2009 WL 1543910 at *2.

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are separate and distinct devices for securing post-conviction relief.2 A Section 2241 petition attacks
the manner in which a sentence is executed. 28 U.S.C. § 2241(a). A federal inmate seeking to
collaterally attack the imposition or validity of his federal judgment and sentence is required to bring
a motion to vacate the sentence pursuant to 28 U.S.C. § 2255(a).3 In re Vial, 115 F.3d 1192, 1194
(4th Cir. 1997) (en banc). “In contrast to a [Section] 2255 habeas petition, which is filed with the
original sentencing court, a [Section] 2241 habeas petition can only be filed in the district in which
a prisoner is confined.” United States v. Poole, 531 F.3d 263, 264 (4th Cir. 2008); 28 U.S.C. §
2255(a). Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed
limitations on the consideration of “second or successive” habeas petitions. The applicant of such
a petition in the district court must obtain leave to do so from a panel of the Court of Appeals. (See
Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Court).
Leave may be granted only if the proposed habeas petition contains claims resting on (1) newly
discovered evidence, that if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense, or (2) a new rule of constitutional law, made retroactive to

2

The Court finds that 28 U.S.C. § 1333, as cited by Petitioner, is not relevant to his request for post-conviction

3

Section 2255 provides:

relief.

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 (a).

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cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C.A. §
2255(h); United States v. Winestock, 340 F.3d 200, 204 (4th Cir.2003). “In the absence of pre-filing
authorization, the district court lacks jurisdiction to consider an application containing abusive or
repetitive claims.” (Id. at 205) (citing Evans v. Smith, 220 F.3d 306, 325 (4th Cir.2000)).

III.
At the outset, the Court finds that this action was initiated on November 11, 2009, five
months after the Honorable Thomas E. Johnston determined that a pre-filing injunction was
appropriate for this Petitioner. The Court further finds that Petitioner is not represented by an
attorney licensed to practice law in this state or this Court, he has not obtained leave to proceed pro
se and in forma pauperis on the grounds that he is in imminent danger of serious physical injury, or
paid the required filing fee in full. As a result, this Court finds that Petitioner has wholly failed to
comply with Judge Johnston’s June 2, 2009 pre-filing injunction. This failure alone warrants the
denial of Petitioner’s motion and the dismissal of the instant action. However, the assigned
Magistrate Judge has issued a PF&R in this matter and Petitioner has timely filed objections. Out
of an abundance of caution, the Court will, in this instance, consider the Petitioner’s submissions
although they run afoul of the pre-filing injunction to which Petitioner is bound.
In the PF&R, the Magistrate Judge finds that the nature of Petitioner’s claims–that his plea
was involuntary and the felon in possession statute violates the Second Amendment and the
Commerce Clause of the United States Constitution–reveals that Petitioner is challenging the
validity of his conviction and sentence. In his objections, Petitioner does not challenge this finding.
Instead, he asserts his disagreement with a review of this matter by a magistrate and continues to
challenge his guilty plea, his lack of a jury trial and the constitutionality of the “gun control act.”
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Finally, he states that “a writ of habeas corpus is applicable under the foregoing objections.” (Pet.’s
Obj. at 2.)

The Court has considered the Petitioner’s submissions and finds that while they are

all captioned under a variety of titles, including a Rule 60(b) motion for relief from final judgment,
the substance of each document contains arguments properly asserted in a Section 2255 motion.
There has been a “longstanding practice of courts to classify pro se pleadings from prisoners
according to their contents, without regard to their captions.” United States v. Winestock, 340 F.3d
200, 203 (4th Cir.2003) (citing United States v. Emmanuel, 288 F.3d 644, 647 (4th Cir.2002)); see
also Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) (“Call it a motion for a new trial,
arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari,
capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for
a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls.”)(citation
omitted). Therefore, the Court construes the instant petition and subsequent submissions as a
Section 2255 motion challenging the validity of Petitioner’s conviction or sentence. There is no
dispute that Petitioner has previously sought post-conviction relief in a Section 2255 motion and that
the same was denied on the merits. Petitioner does not challenge the Magistrate Judge’s finding that
he is raising a second or successive Section 2255 motion which has not been authorized by the Court
of Appeals. See 28 U.S.C. § 2244(b)(3). Absent such pre-filing authorization, this Court lacks
jurisdiction to consider Petitioner’s claims. Winestock, 340 F.3d at 205.
Moreover, Petitioner, in his objections and varied submissions filed after the Magistrate’s
PF&R,4 essentially maintains his assertions that his guilty plea was involuntary and that his
conviction is unlawful. These assertions amount to general conclusory objections. This Court need

4

See discussion infra Part IV.

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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). However, to the extent that Petitioner
maintains a challenge of the constitutionality of Section 922(g)(1), Petitioner has not demonstrated
that there has been a substantive change of the law such that the conduct, of which Petitioner was
convicted, is no longer criminal. Moreover, to the extent that he asserts that his claims should be
properly considered as a Habeas Corpus Petition asserted pursuant to 28 U.S.C. 2241, the Court
finds that objection fails.5 Petitioner has failed to sustain his burden of demonstrating that Section
2255 is inadequate or ineffective to permit a challenge of his conviction pursuant to Section 2241.
Finally, Petitioner states he has “never agreed to a Magistrate nor will [he].” (Pet.’s Obj. at
1.) Petitioner seemingly disagrees with the Court’s referral of pro se prisoner litigation to a
magistrate for findings and recommendation. Such a statement amounts to a complaint about the
procedural aspects of pro se prisoner litigation. To the extent that this contention may be deemed
5

While a federal prisoner may not seek collateral relief from a conviction or sentence by way of a Section
2241 petition generally, there is an exception under the oft-referenced “savings clause” in Section 2255. The provision
provides that a prisoner may seek relief under Section 2241if the remedy under Section 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C. § 2255(e). The “savings clause” is not triggered “merely . . . because
an individual is procedurally barred from filing a Section 2255 motion[.]” Vial, 115 F.3d at 1194. Additionally, Section
2255 “is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision.” In
re Jones, 226 F.3d 328, 333 (4th Cir. 2000). The Fourth Circuit Court of Appeals has recognized that the savings clause
applies in only very limited circumstances. Specifically, Section 2255 is inadequate and ineffective to test the legality
of a conviction when:
(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 substantive law changed such that the conduct
of which the prisoner was convicted is deemed not to be criminal; and (3) the
prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule
is not one of constitutional law.
Poole, 531 F.3d at 269 (quoting Jones, 226 F.3d at 333-34.); Darden v. Stephens, No.10-7496, 2011 WL 1625094, at
*1 (4th Cir. Apr. 29, 2011). The petitioner bears the burden of demonstrating that the Section 2255 remedy is inadequate
or ineffective. Hood v. United States, 13 F.App’x 72 (4th Cir. 2001) (unpublished decision); Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001).

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a proper objection, the Court finds that it is a general conclusory objection, which does not warrant
de novo review and it is without merit. Delegation to the magistrate of cases–pressed in the nature
of the instant case–does not run afoul of the Constitution as this Court retains its authority to
consider the issues under dispute and to accept, reject or modify the magistrate’s findings. (See
United States v. Raddatz, 447 U.S. 667, 680 (“Due process rights . . . are adequately protected by
[28 U.S.C.] § 636(b)(1). . . . [T]he district court judge alone acts as the ultimate decision maker, the
statute grants the judge broad discretion to accept, reject, or modify the magistrate’s proposed
findings.”)
Therefore, upon review of the Petitioner’s objections and the entire record herein, the Court
finds that Petitioner’s objections are overruled.

IV.
Since filing his objections to the PF&R, Petitioner has filed several additional documents.
One of Petitioner’s submissions is a duplicate of a document filed by Petitioner in James P. Smith
v. United States, Civil Action No.5:08-cv-919. (See Document 146). In its review of that case, this
Court considered Petitioner’s submissions, construed his filings as a challenge to the validity of his
conviction and sentence under 28 U.S.C. § 2255, and determined that jurisdiction to consider
Petitioner’s claims was lacking. The United States Court of Appeals for the Fourth Circuit affirmed
the ruling. (Smith v. United States, 464 F.App’x 137 (4th Cir. 2012)). Consequently, additional
consideration of this duplicate document is not required.
Moreover on August 4, 2011, Petitioner filed new motions wherein he continues his
challenge to the constitutionality of the “gun control act.” (See “Non-Statutory Habeas Corpus CR
# 5:99-cr-00161-1 28 USC 1333 Violation of Due Process” (Document 148) (Petitioner asserts that
9

“his conviction for ‘mere possession’ of a firearm is contra indicated by the Right of the People to
keep and bear arms” and discusses the Game Act of 1692); “Ineffective Assistance of Counsel Good
Cause & Prejudice” (Document 149) (Petitioner asserts that “all of his so called attorneys” are
ineffective for failing to assert the argument that his “‘offense’ [of conviction] has no basis in fact”;
that he has uncovered “newly discovered evidence” of the Game Act showing the “common law
history” of the Second Amendment to the United States Constitution” and that there is a new rule
of constitutional law), and “28 USC 1333 CV 5:09-01257 Explanatory Text” (Document 150)
(Petitioner discusses at treatise on “game laws” and “the Game Act of 1692.”)6 The Court observes
that these submissions were filed well after the established deadline for objections to the PF&R in
this matter and that Petitioner has not sought to amend his objections with these submissions.
However, even if the Court construed these filings as additional objections to the PF&R, the
objections are without merit for the reasons previously stated herein.

V.
In light of the foregoing, the Court ORDERS that Petitioner’s Objections are
OVERRULED. The Court lacks jurisdiction to consider Petitioner’s Second or Successive Section
2255 Motion absent authorization by the appropriate Court of Appeals. Accordingly, the Court
hereby ADOPTS and incorporate herein the findings and recommendation of the Magistrate Judge
as contained in the Proposed Findings and Recommendation, and ORDERS that Petitioner’s Section
2255 Motion (Documents 126, 131, 132,133) be DENIED.
The Court has additionally considered whether to grant a certificate of appealability. See 28

6

The Court observes that these same documents were filed in Petitioner’s underlying criminal matter, United
States v. Smith, Criminal Action No. 99-cr-00161, as Documents 146-148.

10

U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). 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 directed to remove the instant matters from the docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:

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July 30, 2012