Wilborn v. Joyner
| Decision Date | 08 November 2018 |
| Docket Number | No. 0:18-cv-01565-DCN,0:18-cv-01565-DCN |
| Parties | DON MITCHELL WILBORN, Petitioner, v. H. JOYNER, Warden, Respondent. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court on Magistrate Judge Paige J. Gossett's Order ("Order") construing petitioner Don Mitchell Wilborn's ("petitioner") motion requesting reassignment as a request to recuse and denying the motion, ECF No. 15, and her Report and Recommendation ("R&R") that recommends this court deny petitioner's writ of habeas corpus petition pursuant to 28 U.S.C. § 2241, ECF No. 27. For the reasons set forth below, the court affirms the Order, adopts the R&R, and denies the petition.
Petitioner pleaded guilty to conspiracy to possess with intent to distribute methamphetamine in the United States District Court for the Northern District of Alabama. ECF No. 10-1 at 2. He was sentenced under 21 U.S.C. § 841(b)(1)(A) to 240 months' imprisonment and sixty months' supervised release. Id. at 3. Petitioner's sentence was calculated using, in part, drug quantities from dismissed charges. Id.
The R&R recounts the procedural background of petitioner's case. ECF No. 15 at 1-1. Petitioner's only objection to this portion of the R&R relates to its conclusion about the other petitioner, Wendel Robert Wardell, Jr. ("Wardell"),1 with whom petitioner filed his objections. ECF No. 27 at 5.
Petitioner now seeks to have his sentence vacated pursuant to 28 U.S.C. § 2241. Petitioner filed his habeas petition on June 7, 2018 and then filed an amended petition on July 25, 2018. Then petitioner filed a motion for random re-assignment of his case on July 30, 2018, and the magistrate judge construed the motion as a request to recuse and denied it on August 3, 2018. On the same day, the magistrate judge issued her R&R recommending that petitioner's habeas petition be dismissed. The court granted petitioner's request for an extension of time to file objections to the R&R on August 28, 2018. Petitioner filed his objections as joint objections with Wardell on September 13, 2018. No response has been filed.
Magistrate judges have "the authority to hear and determine any pretrial matter pending before the court" except for dispositive motions. United States v. Benton, 523 F.3d 424, 430 (4th Cir. 2008). A party may object to a magistrate judge's order on a nondispositive matter within 14 days of service of the order. Fed. R. Civ. Pro. 72(a). The district court reviews such orders for clear error. 28 U.S.C. § 636(b)(1)(A); Springs v. Ally Fin. Inc., 657 F. App'x 148, 152 (4th Cir. 2016).
This court is charged with conducting a de novo review of any portion of the magistrate judge's R&R to which specific, written objections are made, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). The magistrate judge's recommendation does not carry presumptive weight, and it is the responsibility of this court to make a final determination. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). A party's failure to object may be treated as agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 150 (1985).
Petitioner is proceeding pro se in this case. Federal district courts are charged with liberally construing complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se complaints are therefore held to a less stringent standard than those drafted by attorneys. Id. Liberal construction, however, does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
Petitioner raises several objections to the Order and the R&R. With regard to the Order, petitioner objects to the magistrate judge's construction of his motion for random reassignment as a request to recuse. He alleges that the magistrate judge "mishandle[ed] . . . the motion for reassignment in direct violation of the local rules and/or Federal Rules of Civil Procedure." ECF No. 27 at 2. With regard to the R&R, petitioner first objects tothe magistrate judge's failure to provide copies of the unpublished cases cited in her R&R. Id. Next petitioner objects to the R&R's conclusion that his petition should be summarily dismissed based on (1) its analysis of Nelson v. Colorado, 137 S. Ct. 1249 (2017), id. at 9; and (2) its unwillingness to apply Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to his sentence, id. at 20.
Petitioner first argues that the magistrate judge erred in construing his motion for random reassignment as a request to recuse. Relevant to his argument is the fact that the magistrate judge denied petitioner's previous habeas petition in 2016. ECF No. 27 at 4; Wilborn v. Mansukhani, 16-cv-1134. Here, petitioner claims that the Order ignored Local Civ. Rule 73.02(C)(1)(f) and (g) (D.S.C.), which require that federal prisoner cases challenging confinement be assigned to magistrate judges on a rotational basis, and related cases be assigned to the same magistrate judge. ECF No. 27 at 2-3. Petitioner then asserts that to "contrary to [the rules] above," Local Civ. Rule 73.02(C)(6) (D.S.C.) requires new cases filed by pro se litigants with prior cases to be assigned to the same magistrate judge and district judge who heard their prior cases. Id. at 3. Petitioner appears to be arguing that his case should have been assigned on a rotational basis to a different magistrate judge per Rule 73.02(C)(1)(f), instead of to the same magistrate judge who heard his prior case per Rule 73.02(C)(6). Moreover, petitioner claims that once his motion was construed as a motion to recuse, a district judge should have heard the motion. Id. at 4. Finally, petitioner claims that the magistrate judge "knowingly, and intentionally, ignored her legal responsibilities to avoid an appearance of bias." Id.
The magistrate judge construed petitioner's motion as a request for recusal and found no basis for recusal. She explained that petitioner's disagreement with her prior rulings and "unsupported allegations of bias" were not sufficient to warrant recusal. ECF No. 13 at 3.
ECF No. 10 at 2-3. It was not clearly erroneous for the magistrate judge to interpret this language as a request for recusal. After a thorough review of the record and the Order, the court finds no clear error and therefore affirms the Order.
Next, petitioner objects to the fact that the magistrate judge relied up on and cited unpublished cases in her R&R but did not provide copies to petitioner. Petitioner relies on Local Civ. Rule 7.05 (D.S.C.), which requires parties to attach copies of unpublished decisions to memoranda filed with the court. However, this rule applies to parties before the court, not the court itself. Rule 7.05 is found in the section titled "Pleadings Allowed: Forms of Motions." Local Civ. Rule 7.04 (D.S.C.) explains that "[a]ll motions made . . . shall be timely filed with an accompanying supporting memorandum that shall be filedand made part of the public record." Rule 7.05, titled "Form and Content of Memoranda," subsequently contains the requirement that parties attach unpublished decisions to their memoranda. Read in context, this rule applies to parties filing pleadings, not to the court issuing orders. Therefore, the court finds that the magistrate judge was not required to attach the unpublished cases on which she relied.
Petitioner also objects to the R&R's ultimate conclusion that his petition should be dismissed. Petitioner argues that the magistrate judge erred in finding that: (1) Nelson does not provide relief for petitioner; and (2) the statute under which petitioner was sentenced is not unconstitutionally vague, meaning Dimaya and Johnson do not render petitioner's sentence illegal.
"[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through [28 U.S.C.] § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). When a federal prisoner is barred from seeking habeas relief through § 2255, he may still seek a writ of habeas corpus pursuant to 28 U.S.C. § 2241 through § 2255's saving clause, which is available when a § 2255 motion "proves inadequate or ineffective to test the legality of . . . detention." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). In order to show that § 2255 is inadequate or ineffective to test the legality of detention, a petition must show:
(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...
To continue reading
Request your trial