Reyes-Figueroa v. Perdue, No. 5:2014cv00085 - Document 9 (N.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: this Court finds no clear error in the report and recommendation of the magistrate judge 5 , and it is therefore AFFIRMED and ADOPTED in its entirety. The § 2241 petition is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/4/14. (copy to pro se petitioner by certified mail, rrr)(rjs) (Additional attachment(s) added on 8/4/2014: # 1 Certified Mail Return Receipt) (rjs).
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA JOSE REYES-FIGUEROA, Petitioner, v. Civil Action No. 5:14CV85 (STAMP) R.A. PERDUE, Warden, Respondent. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE I. Procedural History On July 10, 2014, the pro se1 petitioner, Jose Reyes-Figueroa, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241.2 In attacking the validity of his conviction, the petitioner claims he is actually innocent of the gun enhancement applied at his sentencing and that he was not charged with the use of a firearm in the indictment. Further, the petitioner alleges that he was not fairly of informed the unindicted charge and did not have sufficient information to admit or deny the charge or prepare for a firearm enhancement. The petitioner also argues that his lawyer erred in declining a plea agreement for less time than the plea agreement that the petitioner eventually accepted. 1 Pro se describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black s Law Dictionary 1416 (10th ed. 2014). 2 The petitioner is currently an inmate at FCI Gilmer. In accordance with Local Rule of Prisoner Litigation Procedure 2, this case was referred to United States Magistrate John S. Kaull for initial review and report and recommendation. Magistrate Judge Kaull issued a report and recommendation recommending that the petitioner s § 2241 petition be denied and dismissed with prejudice. The magistrate judge advised the parties that, pursuant to 28 U.S.C. § 636(b)(1)(C), any party may file written objections to his proposed findings and recommendations within 14 days after being served a copy of the report and recommendation. the parties did not file objections. Thereafter, For the reasons set forth below, this Court adopts and affirms the magistrate judge s report and recommendation in its entirety. II. Facts The petitioner was named in three counts of a superceding indictment involving the distribution of controlled substances returned against 19 defendants. On September 21, 2009, the petitioner entered into a plea agreement by which he agreed to plead guilty to Count One of the indictment charging him with knowingly conspiring with the intent to distribute and distributing 500 grams of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. On the same date, the district court accepted the petitioner s plea of guilty and adjudged the petitioner guilty. 2 On January 11, 2010, the district court sentenced the petitioner to 120 months incarceration with five years of supervised release to follow. The petitioner did not appeal his sentence or file a motion to vacate pursuant to 28 U.S.C. § 2255. III. Applicable Law Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate recommendation to which objection is timely made. judge s Because no objections were filed, all findings and recommendations will be upheld unless they are clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). IV. Having reviewed Discussion the magistrate judge s report and recommendation for clear error, and finding none, this Court agrees that the petitioner improperly challenges his sentence under § 2241 and that he has failed to demonstrate that 28 U.S.C. § 2255 affords an inadequate or ineffective remedy. A federal prisoner may seek relief pursuant to 28 U.S.C. § 2241 when a petition pursuant to § 2255 is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255; In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). However, the remedy afforded by § 2255 is not rendered inadequate unavailable or ineffective under § 2255 merely because because of a relief has limitation become bar, the prohibition against successive petitions, or a procedural bar due 3 to failure to raise the issue on direct appeal. In re Vial, 115 F.3d at 1194 n.5 (citing Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)). Rather, § 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of the 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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law. In re Jones, 226 F.3d 328 (4th Cir. 2000). In this case, the petitioner has failed to establish the elements required by Jones. As the magistrate judge stated, even if the petitioner satisfied the first and third elements of Jones, the violations that the petitioner was convicted of remain criminal offenses. Thus, the petitioner cannot satisfy the second element of Jones. Accordingly, because a remedy by motion under § 2255 is not inadequate or ineffective, the magistrate judge s report and recommendation dismissing the petitioner s § 2241 petition without prejudice is not clearly erroneous. V. Conclusion For the reasons set forth above, this Court finds no clear error in the report and recommendation of the magistrate judge (ECF No. 5), and it is therefore AFFIRMED and ADOPTED in its entirety. Accordingly, for the reasons set forth above, the petitioner s 4 § 2241 petition is DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Finally, this Court finds that the petitioner was properly advised by the magistrate judge that failure to timely object to the report and recommendation in this action would result in a waiver of appellate rights. Because the petitioner has failed to object, he has waived his right to seek appellate review of this matter. See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir. 1985). IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to the pro se petitioner by certified mail. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. DATED: August 4, 2014 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 5
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