Tillman v. Rickard, CIVIL ACTION NO. 1:18-01244
| Decision Date | 31 March 2020 |
| Docket Number | CIVIL ACTION NO. 1:18-01244 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | BENJAMIN TILLMAN, Petitioner, v. BARBARA RICKARD, Warden, Respondent. |
By Standing Order, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to the court his Proposed Findings and Recommendation ("PF&R") on March 2, 2020, in which he recommended that the court deny petitioner's petition for writ of habeas corpus, deny petitioner's motion for summary judgment, deny respondent's motion to transfer, grant respondent's motion to dismiss, dismiss this action with prejudice, and remove this case from the court's active docket. (See ECF No. 31.)
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 Magistrate Judge Tinsley's Findings and Recommendation. 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 March 16, 2020, petitioner, acting pro se, filed objections to the PF&R. (See ECF No. 32.) As such, his objections were timely.
Petitioner is incarcerated at the Federal Correctional Institution, McDowell, in Welch, West Virginia, serving a 480-month term of imprisonment imposed by the United States District Court for the Northern District of Florida. This sentence was imposed following his conviction by a jury on February 4, 1997, on one count of conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A)(iii), and 846, as pled in Count One of the indictment. See United States v. Tillman, No. 3:96-cr-00058, ECF No. 63 (N.D. Fla. 1997). Petitioner's statutory sentencing range of 10 years to life in prison was increased to 20 years to life based upon the government's filing of an Information under 21 U.S.C. § 851. (ECF No. 2, Ex. S.) This Information set forth that petitioner was previously convicted in 1993 in the Circuit Court of Escambia County, Florida, of possession of cocaine, a third-degree felony under Fla. Stat. § 893.13(1)(f), which carried a penalty of a term of imprisonment not exceeding five years. See Fla. Stat. §§ 893.13(1)(f), 775.982(3)(d). OnApril 18, 1997, petitioner was sentenced to 480 months (40 years) in prison, followed by a 10-year term of supervised release.1
Petitioner unsuccessfully appealed his conviction and sentence to the United States Court of Appeals for the Eleventh Circuit. United States v. Tillman, 138 F.3d 957 (11th Cir. Mar. 4, 1998). Thereafter, the Supreme Court denied a writ of certiorari, and his Judgment became final on October 13, 1998. See Tillman v. United States, 525 U.S. 699 (1998).
On July 19, 1999, petitioner filed a motion for a new trial, which was denied on July 22, 1999. Tillman, No. 3:96-cr-00058, ECF Nos. 157, 158. On appeal, the Eleventh Circuit affirmed the denial of the motion for a new trial. United States v. Tillman, 260 F.3d 625 (11th Cir. May 23, 2001).
Petitioner filed an initial Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in the sentencing court on October 4, 1999. Tillman, No. 3:96-cr-00058, ECF No. 178. That motion was ultimately denied on January 2, 2001. Id., ECF No. 232. Petitioner's motion under Rules 59(e) and 60(b) was subsequently denied on February 8, 2001. Id., ECF Nos. 234,239. He unsuccessfully appealed the denial of those motions to the Eleventh Circuit. See id., ECF No. 271 ().
On January 22, 2002, petitioner filed a second § 2255 motion, which was summarily dismissed as untimely on May 9, 2002. Id., ECF Nos. 274, 282, 283. His appeal of the dismissal of that motion was also unsuccessful. See id., ECF Nos. 284, 301. Petitioner has since filed numerous additional post-conviction motions seeking to be resentenced, motions seeking authorization from the Eleventh Circuit to file a second or successive motion under § 2255, and motions under 18 U.S.C. § 3582 seeking a reduction of his sentence, all of which have been denied. (ECF No. 19, at 4-8.)
On August 22, 2018, petitioner filed the instant § 2241 petition in this court.
Petitioner makes four objections to the PF&R, all of which relate to his claims analyzed in Ground One of the PF&R.2 (SeeECF No. 31, at 8-14.) First, petitioner objects to the PF&R's analysis that because petitioner was convicted of conspiring to possess with intent to distribute cocaine base, which is not a controlled substance analogue ("analogue")3, the Supreme Court's decision in McFadden "has no direct effect on Petitioner's conviction." (Id. at 10; ECF No. 32, at 2); see also McFadden v. United States, 576 U.S. 186 (2015).
Second, petitioner objects to the PF&R's finding that McFadden only marked a substantive change in the law in the context of analogues. (ECF No. 31, at 12; ECF No. 32, at 3-4.) Petitioner relies upon McFadden, 576 U.S. 186, Hahn v. Moseley, 931 F.3d 295 (4th Cir. 2019), United States v. Ritchie, 734 F. App'x 876 (4th Cir. 2018), and United States v. Stanford, 823 F.3d 814 (5th Cir. 2016), in support of his objection.
Petitioner's third objection is to the PF&R's finding that petitioner had previously unsuccessfully asserted his argument that the government failed to prove the identity of the drug. (ECF No. 31, at 12; ECF No. 32, at 5-6.) The PF&R concludedthat because he has previously made this argument, it was available to him at the time of his conviction, and thus McFadden cannot be considered a new rule for petitioner's purposes. (ECF No. 31, at 12.) Petitioner objects, arguing that his McFadden claim was not available to him at the time of his conviction, and that McFadden and United States v. Louis, 861 F.3d 1330 (11th Cir. 2017), then changed the law in his favor. (ECF No. 32, at 6-8.) Essentially, petitioner's first three objections are objections to the PF&R's analysis of the second prong of the savings clause test, regarding whether McFadden sets forth a new substantive change in Eleventh Circuit law.
Petitioner's fourth objection is to the PF&R's conclusion that his transfer of custody from the jurisdiction of the Eleventh Circuit into the Fourth Circuit has no effect on the success of his claims. (Id. at 9-10.) He also objects to the PF&R's citation to Barkley v. Meeks, 2016 WL 675053, *2 (D.S.C. Jan. 20, 2016), as he argues that reliance on Barkley is misplaced because both Hahn and Louis were decided after Barkley, and because it is not binding on this court as an unpublished case. (ECF No. 32, at 10.)
Petitioner lastly "opposes all allegations in the PF&R" on grounds two through six, but does not object with specificity toany of these issues. (See id. at 11.) This general opposition to the PF&R does not compel de novo review of grounds two through six. See Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982)
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 unnecessary "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, 687 F.2d at 47-48; 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).
The savings clause creates a narrow exception allowing a § 2255 claim to be brought under § 2241 because § 2255 is inadequate and ineffective. To meet the savings clause exception for a challenge to the validity of a conviction,4 a petitioner's claim must meet the following three conditions: (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 aforementioned substantive law changed such that the conduct of which the petitioner was convicted is deemed not to be criminal; and (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or...
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