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Wilborn v. Joyner

United States District Court, D. South Carolina, Rock Hill Division

November 8, 2018

DON MITCHELL WILBORN, Petitioner,
v.
H. JOYNER, Warden, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         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.

         I. BACKGROUND

         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.

         II. STANDARDS OF REVIEW

         A. Review of Magistrate's Order

         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 Fed.Appx. 148, 152 (4th Cir. 2016).

         B. R&R

         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).

         C. Pro Se Plaintiff

         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).

         III. DISCUSSION

         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 to the 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 ...


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