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Valenciano v. Warden of FCI

United States District Court, D. South Carolina, Charleston Division

November 18, 2014

Richard Valenciano, Petitioner,
v.
Warden of FCI — Edgefield, Respondent.

ORDER

R. BRYAN HARWELL, District Judge.

On May 12, 2014, Richard Valenciano ("Petitioner"), a federal prisoner currently confined at Federal Correctional Institution-Edgefield in Edgefield, SC, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. See Pet., ECF No. 1. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation ("R & R") of United States Magistrate Judge Bruce Howe Hendricks, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina. See R & R, ECF No. 12. In her R & R, the Magistrate Judge recommends the Court dismiss Petitioner's petition without prejudice and without requiring the respondent to file a return. See id. at 8.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner alleges a conviction and sentencing for a firearm offense in the United States District Court for the District of New Mexico resulting in a sentence of 210 months. See ECF No. 1 at 2. Records in Petitioner's criminal case, United States v. Valenciano, No. 2:02-cr-1104-BB, indicate that Petitioner was originally sentenced to a 210 month term of imprisonment on August 13, 2003, subsequent to a jury verdict finding him guilty.[1] See United States v. Valenciano, 126 Fed.App'x 883 (10th Cir. 2005). Petitioner appealed, and on February 1, 2005, the Tenth Circuit dismissed the appeal. See id. at 886.

On May 1, 2006, Petitioner filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. On January 3, 2007, the District Court issued an order denying Petitioner's motion and dismissing the petition. See United States v. Valenciano, No. 2:02-cr-1104-BB, at *4 (D.N.M. Jan. 3, 2007).

At some point Petitioner was transferred to FCI - Edgefield, in Edgefield, SC, and on May 12, 2014, he filed the Petition that is presently before the court pursuant to § 2241. Petitioner does not appear to have obtained authorization from the United States Court of Appeals for the Tenth Circuit to proceed with a second or successive § 2255 petition.

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) ("[D]e novo review [is] unnecessary in... situations 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 recommendation."). The Court reviews only for clear error in the absence of a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir.2005). Furthermore, in the absence of specific objections to the R & R, this Court is not required to give any explanation for adopting the recommendation. See Diamond, 416 F.3d at 315; Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).

DISCUSSION

I. Petition, R & R, and Objections

In his Petition, Petitioner asserts that the armed career criminal enhancement he received at sentencing[2] was based, in part, on his prior conviction of escape in violation of 18 U.S.C. § 751(a). See ECF No. 1 at 2. He argues that this offense no longer constitutes a violent felony and thus does not qualify as a predicate offense for purposes of the armed career criminal sentencing enhancement, 18 U.S.C. § 924(e). See id. at 5. Petitioner argues that the Tenth Circuit has interpreted Chambers v. United States, 555 U.S. 12 (2009)-which held that certain types of escape were non-violent felonies within the meaning of the ACCA-to find that Petitioner's escape conviction would likely no longer constitute a violent felony. See United States v. Charles, 576 F.3d 1060, 1063 (10th Cir. 2009). Petitioner argues that, applying the modified categorical approach set forth in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013), his escape conviction would not constitute a violent felony. Petitioner requests that, "because Petitioner's sentence exceeds the statutory maximum penalty, " he receive a reduction in his sentence "to the statutory maximum of 10 years." See ECF No. 1 at 15.

In her R & R, the Magistrate Judge recommended finding that Petitioner failed to satisfy the savings clause of § 2255, and thus could not pursue relief through a § 2241 habeas petition. See ECF No. 15 at 7-8. As the Magistrate Judge noted, Petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause, which states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that ...

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