Hunt v. Rickard, CIVIL ACTION NO. 1:18-01371
| Decision Date | 11 March 2021 |
| Docket Number | CIVIL ACTION NO. 1:18-01371 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | KEVIN G. HUNT, Petitioner, v. BARBARA RICKARD, Warden, Respondent. |
By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Proposed Findings and Recommendation ("PF&R") on March 30, 2020, in which she recommended that the court deny petitioner's § 2241 petition, grant respondent's request for dismissal, and dismiss this matter from the court's docket with prejudice. (ECF No. 21.)
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 the PF&R. 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. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
On April 13, 2020, petitioner, acting pro se, filed a motion seeking an extension of time to file objections to the PF&R. On April 14, 2020, the court granted petitioner's motion and gave him until June 16, 2020, to file objections. Although petitioner's objections were not filed until June 19, 2020, they are postmarked June 12, 2020; therefore, the court will deem them timely filed.
The PF&R lays out the background to this case in depth. To summarize, after a jury found petitioner guilty of armed bank robbery and two related crimes, a district court in the Southern District of Florida sentenced him to 300 months on the armed bank robbery count and to 60-month sentences on each of the other two counts, one to run concurrently (use of a firearm) and the other to run consecutively. In doing so, the sentencing court designated petitioner a career offender under U.S.S.G. § 4B1.1 and found that, accordingly, his guidelines range was 262-327 months' imprisonment for the bank robbery offense. Petitioner was convicted in 1996 and sentenced in 1997. At the time, the sentencing guidelines were mandatory. Petitioner's conviction for use of a firearm mandated an additional 60 months' imprisonment. To date, petitioner has served approximately 300 months of his combined 360-month sentence.
After an unsuccessful direct appeal and initial motionunder 28 U.S.C. § 2255, and between his fifth and sixth applications for leave to file a successive motion under § 2255, petitioner filed this motion under § 2241.
Petitioner objects to the PF&R on the following grounds:
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 donot 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) (); McPherson v. Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) ().
"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).
"[I]t is well established that defendants convicted infederal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997) (en banc)). There is, however, an exception under § 2255(e) known as the "savings clause." See Hahn v. Moseley, 931 F.3d 295, 300 (4th Cir. 2019). As the Fourth Circuit has explained, United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018).
The Fourth Circuit's test for whether the savings clause applies to challenges to alleged sentencing errors derives from In re Jones, 226 F.3d 328, 334 (4th Cir. 2000). In Wheeler, the Fourth Circuit expanded the Jones test to include challenges to "fundamental sentencing errors" (as opposed to only convictions) and set forth a slightly modified version of the test for such errors: "(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateralreview; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect." Wheeler, 886 F.3d at 428-29.
Petitioner bears the burden of showing the inadequacy or ineffectiveness of § 2255. See Hood v. United States, 13 F. App'x 72, 2001 WL 648636, at *1 (4th Cir. 2001); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). 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) ( ) (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).
This § 2241 petition challenges the lawfulness of petitioner's 1997 sentence, and more specifically, his career-offender designation. He says that the law has developed such that his Nebraska burglary convictions no longer qualify as "crimes of violence" under U.S.S.G. § 4B1.1 and that, accordingly, his pre-Booker guidelines range on the bank robbery count should have been much lower. He contends that he is entitled to relief under 28 U.S.C. § 2241 in the form of immediate release from custody.
After a de novo review of the portions of the PF&R to which petitioner objects, the court agrees with the PF&R that this case must be dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 2255 and Wheeler.
Petitioner appears to object that the PF&R somehow inaccurately represented which crimes the sentencing court found to be predicate offenses for the career offender enhancement under U.S.S.G. § 4B1.1. Unlike his other objections, he does not cite to the page of the PF&R that has this purported error. It could be page 6. There, the PF&R recounts that the Eleventh Circuit had previously noted that petitioner had three unchallenged residential burglaries in his presentence report:one from Illinois and two from Nebraska. Nowhere in the PF&R's discussion section is there a reference to the Illinois burglary. This is simply something that the Eleventh Circuit noted and that the PF&R related as part of its section titled, "Factual and Procedural History in the Eleventh Circuit." The PF&R does not say that the Illinois burglary was a predicate offense, nor does it analyze it as such. The lack of explanation from petitioner as to how the PF&R erred suggests that there is no error. At any rate, the court cannot discern one.
Therefore, this objection is OVERRULED.
Petitioner next objects to the PF&R's "construal" of his petition, citing pages 12-13. These pages describe the procedural history of this...
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