Blackwood v. Ziegler
Filing
17
MEMORANDUM OPINION AND ORDER: that the Magistrate Judge's 10 Proposed Findings and Recommendation be Adopted; that the Petitioner's Objections 14 and 15 be Overruled; that the Petitioner's 4 Application to Proceed without Pre payment of Fees or Costs be denied; that Petitioner's 1 & 5 Application for Writ of Habeas Corpus by a Person in Federal Custody Pursuant to 28 USC 2241 be Dismissed and that this matter be stricken from the docket of this Court; the Court denies a certificate of appealability. Signed by Judge Irene C. Berger on 10/25/2012. (cc: attys; any unrepresented party) (cds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
DEAN ALEXANDER BLACKWOOD,
Petitioner,
v.
CIVIL ACTION NO. 5:11-cv-00608
JOEL ZIEGLER,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Petitioner’s Application under 28 U.S.C. § 2241 for Writ of
Habeas Corpus by a Person in Federal Custody (Documents 1 and 5) and Application to Proceed
Without Prepayment of Fees (Document 4). By Standing Order (Document 2) entered on
September 2, 2010, this action was referred to the Honorable R. Clarke VanDervort, United States
Magistrate Judge, for submission of proposed findings of fact and a recommendation for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On August 15, 2012, the Magistrate Judge submitted his Proposed Findings and
Recommendation (“PF&R”), (Document 10) wherein he recommended that the Court deny
Petitioner’s Application to Proceed Without Prepayment of Fees, dismiss Petitioner’s Application
for Writ of Habeas Corpus by a Person in Federal Custody Pursuant to 28 U.S.C. § 2241, and
remove this mater from the Court’s docket. On September 20, 2012, Plaintiff timely filed his
objections to the PF&R (Document14), which the Court has reviewed together with Petitioner’s
Affidavit in Support of the Objections (Document 15). After thorough review and consideration,
the Court finds, for the reasons stated herein, that Petitioner’s objections should be overruled and
the Magistrate Judge’s PF&R should be adopted.
FACTUAL AND PROCEDURAL HISTORY
Magistrate Judge VanDervort’s PF&R sets forth in detail Petitioner’s previous and current
motions. The Court now incorporates by reference those facts and procedural history. To
provide context for the ruling herein, the Court provides the following summary.
On July 27, 2009, Petitioner, Dean Alexander Blackwood, pled guilty in the United States
District Court for the District of Maryland to one count of conspiracy to distribute and possess with
intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. § 846. United
States v. Dean Blackwood, Case No. 1:09-cr-00135 (D. Md. 2009) at Dkt. 40. On October 15,
2009, the Honorable Richard D. Bennett, Judge of the District Court in Maryland, sentenced
Petitioner to a term of imprisonment of fifty-eight months, to be followed by a five-year term of
supervised release. (Id. at Dkt. 45). Petitioner is currently serving his term of imprisonment at the
Federal Correctional Institution located in Beaver, West Virginia (“FCI-Beckley”).
Petitioner, acting pro se, filed two Motions to Vacate, Set Aside or Correct Sentence
pursuant to 28 U.S.C. § 2255 in the District Court of Maryland. (Id. at Dkts. 49 and 51).
Petitioner’s motions, filed on May 17, 2010 and on June 16, 2010, were consolidated by the
District Court of Maryland on June 25, 2010. (Id. at Dkt. 52). In his motions, Petitioner alleged
that he was denied his right to appeal and that trial counsel was ineffective. (Id. at Dkt. 51). On
October 22, 2010, the District Court, by order, withheld a ruling on Petitioner’s Section 2255
Motion, scheduled an evidentiary hearing, and appointed counsel for Petitioner. (Id. at Dkts. 59
2
and 60). On December 9, 2010, the District Court of Maryland denied Petitioner’s Motion to
Vacate under 28 U.S.C. § 2255. (Id. at Dkt. 64).
On December 14, 2010, Petitioner filed a Petition for Coram Nobis pursuant to 18 U.S.C. §
3661 in the District Court of Maryland. (Id. at Dkt. 69). Petitioner sought a downward departure
or to have his sentence vacated based on his claims that procedural errors occurred in his criminal
trial. (Id). The District Court construed the petition as a Section 2255 Motion and dismissed it as
successive, by Order entered on January 7, 2011. (Id). Petitioner then filed a Notice of Appeal on
October 3, 2011, which the Fourth Circuit Court of Appeals dismissed on March 5, 2012, finding
that Petitioner failed to file a timely notice of appeal or obtain an extension or reopening of the
appeal period. U.S. v. Blackwood, 468 F. App’x 208 (4th Cir. 2012) (per curiam). On May 21,
2012, the Fourth Circuit denied Petitioner’s Petition for Rehearing and Rehearing En Banc. Id.,
cert. denied, 2012 WL 3203052 (U.S. Oct 01, 2012).
On September 9, 2011, Petitioner, acting pro se, filed his pending letter-form Petition
requesting relief under 28 U.S.C. § 2241 (Document 1). Petitioner requests that the Court
“conduct a release hearing” and direct the Warden to “release my property (body) free from all
obligations for the set judgment in rem against the Debtor, Dean Alexander Blackwood” reasoning
that “[u]nder F.R.C.P. any person claiming an interest in the arrested property is entitled to a
prompt post-arrest hearing.” (Id. at 1). Petitioner also cites to the Uniform Commercial Code,
Rule 60(b), and admiralty law (Id. at 4-5).
On September 19, 2011, Petitioner filed an Application to Proceed without Prepayment of
Fees and Costs (Document 4), Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 (Document 5), Memorandum in Support (Document 6), and Affidavit in Support
3
(Document 7). On July 18, 2012, Petitioner filed Exhibits in support of Petition for Writ of
Habeas Corpus (2241) (Document 9). In support of his petition, Petitioner argues that (1) the
District Court erred by opening an improperly sealed indictment after the statute of limitations had
expired; (2) the District Court erred by failing to hold an evidentiary hearing; (3) the government
erred by” infect[ing] the plea with unfairness as to make the resulting conviction a denial of due
process;” (4) the probation officer erred by “pleading to a greater offense level” than was in the
pre-sentence report which placed Petitioner in a “lower criminal history level and recommend[ed]
for the “safety valve” reduction;” and (5) Petitioner’s attorney provided “ineffective assistance.”
On August 15, 2012, Magistrate Judge VanDervort submitted his Proposed Findings and
Recommendation. On August 21, 2012, Petitioner filed a letter-form Motion for Extension of
Time to File Objections to Proposed Findings and Recommendation (Document 12), which this
Court granted in part on August 22, 2012 (Document 13). On September 20, 2012, Petitioner
filed his Objections and Affidavit in Support (Documents 14 and 15).
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
4
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).
DISCUSSION
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
are separate and distinct devices for securing post-conviction relief. A Section 28 U.S.C. § 2241
habeas petition, which “can only be filed in the district in which a prisoner is confined,” deals with
Petitioner’s “commitment or detention” and attacks the manner in which a sentence is executed. 28
U.S.C. § 2241; United States v. Poole, 531 F.3d 263, 264 (4th Cir. 2008). On the other hand, a 28
U.S.C. § 2255 habeas petition, which is filed with the original sentencing court, is used to
collaterally attack the imposition or validity of a federal inmate’s judgment and sentence. 28
U.S.C. § 2255(a); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc).
Generally, a federal prisoner may not seek collateral relief from a conviction or sentence by
way of a Section 2241 petition.
However, when Section 2255 “appears…inadequate or
ineffective to test the legality of his detention,” a federal prisoner may seek habeas relief under
Section 2241. Poole, 531 F.3d at 270 (quoting 28 U.S.C. § 2255(e)). The Fourth Circuit Court
of Appeals has noted that this so-called “savings clause” “applies in only very limited
circumstances.” Poole, 531 F.3d at 269 (quoting Poole v. Dotson, 469 F.Supp.2d 329, 333 (D.Md.
5
2007). 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. See McGhee v.
Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). If the petitioner cannot meet the “savings clause”
standard, and he is challenging his sentence and conviction, the Court can construe the petition as
a 2255 motion. See Calderon v. Thompson, 523 U.S. 538, 553 (1998). However, under the
statute, “a second or successive motion under § 2255 must be denied unless certified ‘by a panel of
the appropriate court of appeals to contain – (1) newly discovered evidence…; or (2) a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.’” Poole, 531 F.3d at 266 (quoting 28 U.S.C. § 2255(h).
A. Magistrate Judge’s Findings
The Magistrate Judge found that Petitioner’s claims challenge the validity of his 21 U.S.C.
§ 846 conviction and sentence, and therefore, invoke Section 2255, not Section 2241 (Document
10 at 5-6). Petitioner is requesting that the Court “vacate the District Court’s judgment or remand
for a downward departure” (Document 6). Petitioner argues that his conviction and sentence are
6
invalid because of an improper indictment, a double jeopardy violation, prosecutorial misconduct
resulting in an unfair plea, error by a probation officer regarding his criminal history computation,
and ineffective assistance of counsel (Id. at 5-6). Therefore, Petitioner is challenging the validity
of his conviction and sentence, not the execution of his sentence, and as the Magistrate Judge
noted, “a Section 2241 petition that seeks to challenge the validity of a federal sentence must either
be dismissed or construed as a Section 2255 motion” (Id. at 5) quoting Pack v. Yusuff, 218 F.3d
448, 452 (5th Cir. 2000).
Viewing Petitioner’s application as a Section 2255 motion, the Magistrate Judge
recommended that Petitioner’s motion be dismissed because (1) the Court does not have
jurisdiction to hear the motion, (2) Petitioner has not demonstrated that he can invoke any of the
elements of Section 2255’s “saving clause,” and (3) Petitioner did not obtain authorization from
the Fourth Circuit Court of Appeals to proceed with a successive Section 2255 motion (Document
10). The Court does not have jurisdiction because a Section § 2255 motion is filed with the
original sentencing court, which, in this case, is the District of Maryland, not the Southern District
of West Virginia (Id. at 6). Furthermore, the Magistrate Judge found that Petitioner has not
invoked Section 2255’s “saving clause” by demonstrating that there is any reason to consider a
Section 2255 motion inadequate or ineffective. (Id. at 8). Lastly, Petitioner has previously filed
a Section 2255 motion in the District of Maryland and has not obtained authorization of the Fourth
Circuit Court of Appeals to proceed with a successive Section 2255 motion (Id. at 6). In fact, the
Fourth Circuit Court of Appeals dismissed Petitioner’s Notice of Appeal on March 5, 2012, and
denied Petitioner’s Petition for Rehearing and Rehearing En Banc on May 21, 2012. U.S. v.
7
Blackwood, 468 F. App’x 208 (4th Cir. 2012) (per curiam) cert. denied, 2012 WL 3203052 (U.S.
Oct 01, 2012).
B. Petitioner’s Objections
The Court finds that Petitioner’s objections are without merit. Although Petitioner filed
objections to the Magistrate Judge’s Proposed Findings and Recommendations and an Affidavit in
Support, the objections were general, conclusory, and did not challenge any of the Magistrate’s
findings or direct the Court to a specific error in the Magistrate’s PF&R (Documents 14 and 15).
Petitioner has not set forth any argument that demonstrates that he is, indeed, entitled to
relief pursuant to Section 2241, or that Section 2255’s “saving clause” is applicable, or that the
Fourth Circuit authorized a successive Section 2255 motion. (Id). Instead, Petitioner apologizes
for “appearing to be arguing the validity of the Debtor’s federal sentence” and “mov[es] this court
to confirm the settlement of judgment and release the property of the surety upon the confirmation
herein.” (Id. at 1). Petitioner cites to the Uniform Commercial Code, the 13th, 14th, 15th and 19th
Amendments, and the “Freedom of Contract Doctrine” in support of his motion. (Id. at 2-4).
Petitioner does not address or challenge any of the Magistrate’s findings but, rather, continues to
argue for his release based upon theories of commercial law. Therefore, Petitioner’s objections
are without merit and should be overruled.
CONCLUSION
Based on the findings herein, the Court does hereby ORDER that the Magistrate Judge’s
Proposed Findings and Recommendation (Document 10), dismissing Petitioner’s Section 2241
motion, be ADOPTED and that Petitioner’s objections to the PF&R (Documents 14 and 15) be
8
OVERRULED. Furthermore, the Court ORDERS that Petitioner’s Application to Proceed
without Prepayment of Fees (Document 4) be DENIED, that Petitioner’s Application for Writ of
Habeas Corpus by Person in Federal Custody Pursuant to 28 U.S.C. § 2241 (Documents 1 and 5)
be DISMISSED, and that this matter be STRICKEN from the docket of this Court.
The Court has also 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.” Id. at § 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. 437, 484 (2000); Rose v. Lee,
252 F.3d 676, 683-83 (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 Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:
9
October 25, 2012
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?